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_04-0120_EICHLER, GLENN AND KATHY, RICK AND DIANN_Financial Agr for ROWRECORDING REQUESTED BY: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 AND WHEN RECORDED, MAIL TO: Margaret R. Monahan, City Clerk Recorded in Official Records, County of Orange Tom Daly, Clerk-Recorder City San Juan Capistrano IIIIIIII IIIIIIIIIIIIIIIIIIIIIII, 324000 Paseo Adelanto 1111111111111111111111111111111111111111111111111111111 NO FEE San Juan Capistrano, CA 92675 200400007828101:59pm 02102104 200 91 Al2 11 Exempt from Recording Fees: 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 Gov Code 27383 & 6103 City of San Juan Capistrano This Space for Recorder's Use Only Title of Document: Financial agreement for right-of-way acquisition in exchange for construction of public improvements at 31810 and 31812 San Juan Creek Road, Glenn W1 Eichler (Assessor Parcel Number: 666-048-12 & 13 rJ - G� SD 0 0 FINANCIAL AGREEMENT FOR RIGHT-OF-WAY ACQUISITION IN EXCHANGE FOR CONSTRUCTION OF PUBLIC IMPROVEMENTS AT 31810 AND 31812 SAN JUAN CREEK ROAD, GLENN EICHLER, (ASSESSOR PARCEL NUMBER: 666-048-12 & 13� THIS FINANCIAL AGREEMENT ("Agreement") is made and entered into this 20th day of January, 2004, by and between the City of San Juan Capistrano, a Municipal Corporation, hereinafter referred to as the "City" and Glenn and Kathy Eichler, and Rick and Diann Eichler, whose mailing address is 30448 Rancho Viejo Road, Suite 110, San Juan Capistrano, California 92675, herein referred to as "Developer'. WITNESSETH WHEREAS, in connection with development of its land, Developer has applied for and was granted a Lot Line Adjustment to accommodate two single family detached residential homes located on 31810 and 31812 San Juan Creek Road respectively; and, WHEREAS, the City has an interest in facilitating the street widening and appurtenances on San Juan Creek Road along the frontage of the subject properties, specifically referred to as Assessor Parcel Numbers 666-048-12 and 13 respectively; and, WHEREAS, the Developer has an interest in reducing the width of an existing public drainage/equestrian trail easement on Developer's south westerly side of property and has agreed to design and construct, at Developer's cost, certain modifications to an existing storm drain channel located within said easement; and, WHEREAS, the City requires that the design and construction of said modification to the existing storm drain channel within the drainage/equestrian trail easement would continue to provide, at minimum, a 12 foot wide equestrian trail/maintenance access; and, WHEREAS, the Developer has agreed to dedicate to the City the necessary public right-of-way for ultimate street width and utilities purposes and to construct, to the satisfaction of the City Engineer, street improvements and all related appurtenances along said properties' frontages, based upon City payment of $109,050, of which $73,750.00 are for right-of-way acquisition and $35,300 for partial financial participation towards the 0 0 relocation of an existing drainage culvert which would be interfering with the proposed widened street, and also based upon City waving the following fees: Any in-house plan check and inspection fees for the street widening and drainage improvement. (Third party review of Soils Reports, Drainage Improvement Plans and Hydrology Hydraulic Studies shall be subject to fee payment); 2. City processing fees for abandonment of section of drainage easement; 3. City processing fees for acceptance of public right -of wayfor San Juan Creek Road. WHEREAS, the $73,750.00, described above, represents the City approved appraisal amount for the subject right-of-way acquisition, paid to the City by Citibank (Formerly Glendale Federal Savings and Loan) in order to meet the conditions of approval set forth in City Council Resolution 86-6-17-4, for the development of Tentative Tract Map 12633 by the Subdivider, Dividend Development Company; and, WHEREAS, City desires to assure that said proposed street widening and channel improvements will be done per City approved plans and in a good workmanlike manner and in accordance with the codes now in force and effect in the City of San Juan Capistrano, California, the terms and conditions of which are incorporated herein by reference. NOW, THEREFORE, in consideration of the premises and promises hereinafter contained, City and Developer agree as follows: SECTION 1. PAYMENT AGREEMENT. Upon receiving the following items from the Developer, the City shall then process, for payment to the Developer, the amount of $73,750.00 for the right-of-way dedication along the street frontages of Assessor Parcel Numbers 666-048-12 and 666-048-13. The proper right-of-way dedication documentation 2. City approved Street & Storm Drain Improvement Plans, as specified in Section 2 below 3. Sureties for all the works of improvement, as specified in Section 3 below. 2 0 0 SECTION 2. DEVELOPER'S OBLIGATIONS. Developer shall dedicate to the City, for ultimate street width (to back of proposed sidewalk along San Juan Creek Road) and utility purposes, the necessary public right-of-way along Developer properties' frontages to accommodate, to the satisfaction of the City Engineer, a secondary Arterial Highway. 2. Developer shall, at his own cost and expense, provide all required tests, design work, equipment, materials and labor in order to complete all of the works of improvement (the "Works of Improvement"), set forth in Exhibit "A", to the satisfaction of the City Engineer. Such work of improvement shall include but not be limited to the construction of street widening improvements, sidewalk, curb and gutter, relocation of an inlet culvert structure and all related appurtenances. The Encroachment Permit and Street Improvement Plans, which furtherdefines the improvements in Exhibit "A", are on file in the office of the City Engineer, and all documents referenced in Exhibit "A" are incorporated herein by reference. SECTION 3. DEVELOPER'S SECURITY. Developer shall, at all times beginning with the execution of this agreement, guarantee Developer's performance of this agreement by providing City with the following security instruments (the "Security Instruments"), on forms approved by City for the purposes and in the amounts as follows: (1) A Faithful Performance Bond to ensure faithful performance of this agreement in regard to said improvements in the amount of 100% of the estimated cost of construction of the improvements; and (ii) A Labor and Materials Bond to secure payment to any contractor, subcontractor, persons renting equipment orfurnishing labor or materials for the improvements required to be constructed or installed pursuant to this agreement in the additional amount of 100% of the estimated cost of construction of the improvements; In order to guarantee and warranty the Works of Improvement and in addition to the security instruments referenced in Paragraph 3 above, Developer shall provide to City the following Security Instruments: (1) Prior to the City's final acceptance of the Works of Improvement, Developer shall provide to City a Warranty Bond for Works of Improvement warranting the accepted Works of Improvement for a period of one (1) year following said acceptance against any defective work or labor done or defective 0 0 material furnished. The amount of such Warranty Bond for Works of Improvement shall be equal to twenty-five percent (25%) of the estimated construction cost set forth in Exhibit "A", or a suitable amount determined by the City Engineer. SECTION 4. INDEMNITY AND HOLD HARMLESS. Developer shall indemnify, defend and hold harmless the City of San Juan Capistrano and their respective officers, officials, employees and agents from and against any and all liability, loss, damage, expense, costs (including without limitation, attorneys' fees and costs, and fees of litigation) of every nature arising out of or in connection with Developer's use of this Agreement and Developer's performance of work hereunder or its failure to comply with any of its obligations contained in this Agreement. SECTION 5. TERM. This Agreement shall continue in full force and effect until all work is complete and accepted by the City Engineer. Upon completion and acceptance of work, this Agreement shall terminate and all obligations of the City and the Developer will be considered met provided the City or the Developer is not in default hereunder or under the terms of the Note. SECTION 6. ATTORNEY'S FEES. In the event of any litigation between the parties arising out of or related to this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and costs, in addition to whatever other relief such party may be granted. SECTION 7. FORCE MAJEURE. None of the parties hereto shall be deemed to be in default if performance of the obligations required by this Agreement is delayed or becomes impossible because of any act of God, earthquake, fire, strike, sickness, accident, civil commotion, epidemic, act of government, its agencies or officers, or any legitimate cause beyond the control of the parties. SECTION 8. NOTICES. All notices required to be delivered under this Agreement or by law shall be delivered by one of the following means: (i) by personal delivery, (ii) by a reputable document delivery service that provides a receipt showing date and time of delivery, (iii) by United States mail, prepaid, certified, return receipt requested, or (iv) by facsimile transmission, if a fax number is listed below, and so long as the original of the notice is concurrently delivered by one of the other acceptable methods. Notices shall be addressed 18 • as follows: If to City: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: City Clerk Telephone Number: (714) 493-1171 Fax Number: (714) 493-1053 If to Developer: Glenn and Rick Eichler 30448 Rancho Viejo Road, Suite 110 San Juan Capistrano, CA 92675 Telephone Number: (949) 248-5459 Fax Number: (949) 248-0889 Notices delivered by personal delivery, reputable document delivery service, or facsimile transmission in accordance with the terms of this Section shall be effective upon receipt. Notices delivered by mail shall be effective at the earlier of (i) actual receipt, or (ii) if not deliverable, the date of first attempted delivery. The parties hereto may from time to time designate such other address or addresses for receipt of notices by giving notice in accordance with the terms of this Section. SECTION 9. NO ASSIGNMENT. Developer shall not assign or transfer this Agreement to any person, firm, or entity without the prior written consent of City, which consent City may give or withhold in its sole and absolute discretion. SECTION 10. ENTIRE AGREEMENT. This Agreement contains the entire agreement and understanding of the parties concerning the subject matter herein. This Agreement constitutes the entire understanding and agreement of the parties, integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the parties with respect to all or any part of the subject matter hereof. IN WITNESS WHEREOF, two (2) identical counterparts of this agreement, each of which shall for all purposes be deemed an original thereof, have been duly executed by the Developer herein named on the day of , 2004, the name and corporate seal of each corporate party being hereto affixed and these presents duly signed by its undersigned representative(s) pursuant to authority of its governing body. 0 DEVELOPER By: I n Eichler, By: l lLvr Kathy Pchler, Rick Eichler, By: Diann Eichler, (Attach Notary Acknowledgment) Attachment: Exhibit "A" 11 0 CITY OF SAN JUAN CAPISTRANO 0 saro ',MAYOR I ,V CITY CLERK APPROVED AS TO FORM Y ATTORNEY E CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California ss. County of 0 On 1S &W before me, VvWc-' Data Name and Title of Officer (e.g, 'Jane Doe, N ubllc) personally appeared '7b ❑ Wsonally known to me proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) ire subscribed to the within instrument and acknowledged to me that he/e/.etre/they executed the same in his/hefTfheir authorized capacity(ies), and that by his/hheir signature(s) on the instrument the person(s), or dolild the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Y�v�ra ��c�9s. ocrl. Place Notary Seal Above Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: j Individual 11 Corporate Officer—Title(s): 11 Partner — L- Limited ❑ General L LL LL Attorney in Fact Trustee Guardian or Conservator Other: Signer Is Representing: Number of Pages: RIGHT THUMBPRINT OF SIGNER 01999 National Notary Association -9350 De solo Ave., i Box 2402- ChatswotlM1, CA 913132402• x ralionalnotary or, Prod. No 5907 Reorder'. Call Toll -Free 1-600-8766827 MOMCNR '✓s I18EL: (M na7z�"n+oJ OlfOoti�� - a��ruv �.,r•,;y� �.. , • CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California ss. County of 0 On ll.-S.r��l �a ,, before me, L�� mis\lv\ c Date Name and Title of Officer (e.g., "Jane Due Noi Public" personally appeared iiS.n.w� �wc��� Q — , Name(iu of Signe - tr -7onally known to me C proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) ire subscribed to the within instrument and acknowledged to me that,helatfe/they executed the same in l;;lis;`herTt heir authorized capacity(ies), and that by this/fes/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WIT ESS my hand and official seal. C1,111ii `0.' 7-C1S1.9- _Z!0.\1 Place Notary Seal Above Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: _ Number of Pages Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer Signer's Name: I Individual Top of thumb here F', Corporate Officer — Title(s): ❑ Partner — L Limited F7 General F I Attorney in Fact F J Trustee L Guardian or Conservator ❑ Other: Signer Is Representing: 01999 National Notary Ara ocation • 93W Oa Soto Ave., PO Boz 2002 • Chatsworth, CA 91313-2,r02 • w ranonalnotaryor9 Prob. No. 5901 asoNer: Call Toll -Free 1800 0761 �joo PUBLIC AGENCY FORM OF ACKNOWLEDGEMENT State of California ) County of Orange ) ss. City of San Juan Capistrano ) (Gov't Code 40814 & Civil Code 1181) On January 20, 2004, before me, Margaret R. Monahan, City Clerk, personally appeared Joe Soto Mayor, personally known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. (SEAL) WITNESS my hand and official seal. jjJQ C R. Monahan, City Clerk OPTIONAL Capacity Claimed by Signers Description of Attached Document Financial Agreement for right of way Mayor acquisition.....(31810 & 31812 San Juan Creek Road, Eichler —APN 666-048-12 & 13 Title Title or Type of Document Signers are Representing City of San Juan Capistrano January 20, 2004 Date of Document PUBLIC IMPROVEMENT AGREEMENT ASSOCIATED WITH THE DEVELOPMENT OF ASSESSOR PARCEL NUMBER: 666-048-12 & 13 AT 31810 AND 31812 SAN JUAN CREEK ROAD EXHIBIT "A" WORKS OF IMPROVEMENT Type of Improvements: Street and Appurtenant Improvements Storm Drain Channel Improvements and Trail / Maintenance Road 7 Estimated Construction Cost Or Bond Amount $25,800 $46,600 -14 0 MEMORANDUM TO: Meg Monahan, City Clerk FROM; Sam Shoucair, Senior Engineere5� E July 13, 2004 SUBJECT: Release of Certificate of Deposit associated with Eichler Agreement dated January 20, 2004 John Lloyd, who provided a Certificate of Deposit (CD), issued on February 18, 2004, in the amount of 25,8000, for the work of improvement associated with the subject agreement, has request the release of his CD. The contractor doing the work of improvement (Hardy & Harper, Inc.) has posted additional bonds in an amount $166,070.00 for the same work of improvement covered by Mr. Lloyd's CD. Please release the CD provided by John W. Lloyd for the improvement work associated with the subject agreement, as it is redundant. Attachment, copy of CD cc. Maria Guevara C:\MyFiles\Memos-Conditions\Bond matters with City Clerk\2004- Eichler Agreement- suretyl.wpd -In i CONFIRMATION OF CERTIFICATE OF DEPOSIT NON-NEGOTIABLE AND NON TRANSFERABLE Account No.: 435660000583 ISSUED TO: DEPOSITOR NAME(S) AND ACCOUNT ADDRESS First Bank dba First Bank & Trust JOHN W LLOYD For The Benefit Of The City Of San Juan Capistrano 27221 ORTEGA HWY STE E #348, SAN JUAN CAPISTRANO, CA 92675 25461 Rancho Niguel Rd Laguna Niguel, CA 92677- (949)448-5180 Member FDIC ISSUE DgTE MATURRT DATE TERN 5.5. / T.I.N. R AUTOMATICALLY RENEWABLE DEPOSIT AMOUNT 2 / 1 8 / 0 4 05/18/2004 3 Month(s) 554 42-2413 $ 25,800.00 ❑ SINGLE MATURITY Interest will be paid at the rate of 1.050 percent with an annual percentage yield of 1.05 percent. Interest payment frequency every t Month(sl 14 mmpounded/added to account ❑ payable to account number ❑ pay by check The minimum deposit and minimum balance required to earn the stated annual percentage yield is $2,500.00 for certificate terms of 7-89 Days, 5 Months and 7 Months, and $1,000.00 for all other terms. TERMS AND CONDITIONS 1. Words or phrases preceded by a V are applicable only If the ❑ Is marked. Phrases containing a blank space which H not filled in or completed with an WA are not applicable. 2. The certificate is payable to the Depositor, or, if more than one, to either or any of them, or the survivors or survivor, on a maturity date. The Depository Institution is under no obligation to permit withdrawals by anyone other than the persons described above. 3. The Interest rate for your certificate will be paid until the maturity date. 4. The certificate bears simple interest at the rate and basis set forth above. Interest is accrued daily and will be compounded and credited to your account according to the terms set forth above. 5. Interest begins to accrue on the business day you deposit noncash Items, such as checks. 6. After the Certificate is opened, you may not make deposits into or withdrawals until the maturity date. 7. If the deposit is withdrawn before the maturity date, a penalty may be imposed. Refer to the penalty disdosure below for early withdrawal assessment 8. We use the daily balance method to Calculate the Interest on your account This method applies a daily periodic rate to the principal in the account each day. 9. The annual percentage yield assumes principal and Interest will remain on deposit unfit maturity. A withdrawal will reduce earnings. 10. No right In, or tide to the deposit on this Confirmation of Certificate of Deposit is transferable, except on the books of the Depository Institution. IA. All terms of this certificate are subject to the applicable present and future laws and regulations of the state M which the office of the flank which maintains your account is located and by federal law and any U.S. agency or Instrumentality thereof, and all rules, regulations and practices now or hereafter adopted by the Depository Institution with respect hereto. 12. Depositor has contracted to keep the funds evidenced by this Confirmation of Certificate of Deposit on deposit from the Issue Date until the Maturity Date of the certificate. Acceptance of a request by Depositor for a withdrawal of the funds prior to the Maturity Date is at the discretion of the Depository Institution. 13. Automatically Renewable Certificates renew automatically on the Maturity Date. If the term of the account Is greater than 29 days, you have a grace period of ten (10) Calendar days after the maturity date to withdraw the funds without being charged a penalty. If the tens of the account is 29 days or less, you have a grace period of one (1) celandar day to withdraw the funds without being charged a penalty. If you withdraw the funds during the grace period, you will forfeit any interest accrued after the automatic renewal. For automatic renewals of the certificate, Interest will be paid at the rate then in effect at the Depository Institution for similar deposits and any such renewals will be for a time period equal to the original term and subject to these terms and Conditions. 14. Single Maturity Certificates are non-renewable at maturity and the funds on deposit in your certificate will be placed in a ron-interest Dearing account No interest will be paid on the deposit after maturity. EARLY WITHDRAWAL PENALTY: An early withdrawal penalty may be assessed to depositors who withdraw their certificate prior to its scheduled matunty. In no event shall such penalty be less than seven (7) days simple Interest on the certificate amount. The following is an explanation of our penalty. 1) Certificates of 29 days or less: If a certificate is withdrawn prior to Its original, renewed or extended maturity, the depositor shall forfeit an amount equal to the amount of interest on the amount withdrawn that would have been earned for the full term of the certificate at the interest rate being paid on the certificate at the time of withdrawal, regardless of the length of time the funds withdrawn have remained in the certificate. 2) Certificates of 30 to 89 days: If a certificate is withdrawn prior to its original, renewed or extended maturity, the depositor shall forfeit an amount equal to one months interest on the amount withdrawn at the Interest rate being paid on the certificate at the time of withdrawal, regardless of the length of Urce the funds withdrawn have remained in the certificate. 3) Certificates of 3 months or mors but less than 1 year: If a certificate is withdrawn prior to its original, renewed or extended maturity, the depositor shall forfeit an amount equal to three months interest on the amount withdrawn at the interest rate being paid on the certificate at the time of withdrawal, regardless of the length of time the funds withdrawn have remained in the certificate. 4) Certificates of 1 year or more: If a certificate is withdrawn prior to its original, renewed or extended maturity, the depositor shall forfeit an amount equal to the greater of (1) six months interest on the amount withdrawn at the Interest rate being paid on the certificate at the time of withdrawal, regardless of the length of time the funds withdrawn have remained in the certificate, or (2) the Market Yield Adjustment. The Market Yield Adjustment is calculated as follows: (1) Determine the remaining term of the certificate in whole months and divide by 12. This is the Time Factor. (2) Determine the average Treasury Constant Maturity Index (TCMI) rate for the previous week as provided by the Federal Reserve Bank's H-15 statistical release (or its equivalent if the H-15 release is discontinued). Use the rate for the TCMI term equal to the remaining term of the certificate, or the next longer TCMI term if the remaining term of the certificate is not equal to a tens published by the Federal Reserve Bank. (3) Subtract the current interest rate being paid on the certificate from the TCMI rate determined in step 2. This is the Rale Facto. (4) Multiply the Rate Factor determined in step 3 by the amount of principal being withdrawn and by the Time Factor detennined in step 1. The result is the 'Market Yield Adjustment". The TCMI rates are available from any federal Reserve Bank or from any First Bank office. By: Authorized Bank Signature Customer Receipt PLF-121503 TheMbul Surety 1S K,,) GV- l **REVISED** �, ,�\} PERFORMANCE AND PAYMENT BOND 0 St. Paul Fire and Marine Insurance Company St. Paul Guardian Insurance Company St. Paul Mercury Insurance Company United States Fidelity and Guaranty Company Fidelity and Guaranty Insurance Underwriters, Inc. Fidelity and Guaranty Insurance Company Principal Office: 385 Washington Street St. Paul, Minnesota 55102 Seaboard Surety Company Principal Office: 5801 Smith Avenue Baltimore, Maryland 21209 Bond Number TC / / UJ Premium: $1,416.00 KNOW ALL MEN BY THESE PRESENTS, that we, HARDY & HARPER INC. of 1312 AVENUE, SANTA ANA, CA 92705 as Principal, and ST PAUL GUARDIAN INSURANCE COMPANY a corporation, having its principal office and place of business in the City of MINNESOTA as Surety, are held and firmly bound unto PARAMOUNT BUILDERS as Obligee, in the sum of ONE HUNDRED SIXTY—SIX THOUSAND SEVENTY AND 00/00 Dollars ($ 166, 070.00 ) for the payment whereof Principal and Surety bind themselves, their heirs, executors, administrators, successors, and assigns, jointly and severally, firmly by these presents. Signed, sealed and dated 20th day of APRIL 2004 WHEREAS, the Principal has entered into a certain written contract dated the , with the Obligee for CHANNEL IMPROVEMENT PLAN SAN JUAN CREEK HOMES STREET IMPROVEMENT PLAN SAN JUAN CREEK ROAD day of NOW THEREFORE, the condition of this Obligation is such, that if the Principal shall faithfully perform said contract according to its terms, covenants and conditions and shall promptly pay all persons supplying labor or material to the Principal for use in the prosecution of the work under said contract, then this obligation shall be void; otherwise it shall remain in full force and effect. Subject to the named Obligee's priority, all persons who have supplies labor or material directly to the Principal for use in the prosecution of the work under said contract shall have a direct right of action under this bond. The Surety's aggregate liability hereunder shall in no event exceed the amount set forth above. No claim, suit or action shall be brought hereunder after the expiration of one (1) year following the date on which Principal ceased work on said contract. If this limitation is made void by any law controlling the construction hereof, such limitation shall be deemed to be amended to equal the minimum period of limitation permitted by such law. Witness: STEVE KIIZSCHNER VICE RPESIDENT 86103 Rev. 9-1999 Printed in U.S.A. HARDY & HARPER, INC. Principal Surety Company: (Seal) ST. PAUL GUARDIAN INSURANCE COMPANY _ By zil�� (Sea!) Attorney -in -Fact 0 0 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California 1 County of Orange } ss. On April 20. 2004 before me, Gabriela Medina - Notary Public Date Nana aro Me a G9mer (e.0�.8I Dos, N -WY p7w ) ' personally appeared Kathleen Maas Neow(a) or Sgeerte) personally known to me ❑ proved to me on the basis of satisfactory evidence to be the persons) whose name(a) is///tle subscribed to the within Instrument and acknowledged to me that f/9/she/MW executed the same in i7f5/herl#ffl%r authorized capacity*M), and that by JWher/tW#(r signature(s+i on the instrument the person(*, or the entity upon behalf of which the personf6) acted, executed the Instrument. WIT �-STYnd nd official seal. PNw NotM Beef Abwe Gabriela MedinasoeM1e0f N01ery P'm0e OPTIONAL Though the fnformatlon below is not required by law, It may prove valuable to persons relying on the document and could Prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Payment & Performance Bond Document Date: Number of Pages: Signer(s) Other Than Named Above: None-----------------------_----_ Capacity(les) Claimed by Signer Signer's Name: Kathleen Maas ❑ Individual Top of thumb here - O Corporate Officer—Title(s): ❑ Partner —❑ Limited ❑ General Cf Attorney In Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: St. Paul Guardian Insurance Company a 1097 Na9dW NotaryAs od nen • 9350 De Som Aw., P.C. Boa 2402 • Cftb . CA 913134402 Pooh. W. 5907 Reoreen Call TW.s 1-000.8768927 lheStPdul Power of Attorney No. POWER OF ATTORNEY Seaboard Surety Company St. Paul Fire and Marine Insurance Company St. Paul Guardian Insurance Company St. Paul Mercury Insurance Company 20675 United States Fidelity and Guaranty Company Fidelity and Guaranty Insurance Company Fidelity and Guaranty Insurance Underwriters, Inc. Certificate No. 1971617 KNOW ALL MEN BY THESE PRESENTS: That Seaboard Surety Company is a corporation duly organized under the laws of the State of New York, and that St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company and St. Paul Mercury Insurance Company are corporations duly organized under the laws of the State of Minnesota, and that United States Fidelity and Guaranty Company is a corporation duly organized under the laws of the State of Maryland, and that Fidelity and Guaranty Insurance Company is a corporation duly organized under the laws of the State of Iowa, and that Fidelity and Guaranty Insurance Underwriters, Inc. is a corporation duly organized under the laws of the State of Wisconsin (herein collectively called the "Companies"), and that the Companies do hereby make, constitute and appoint H. J. Dueck, Dwight Reilly, Christopher S. Hopper, Claudette N. Martin and Kathleen E. Maas of the City of Upland , State California , their true and lawful Attorney(s)-in-Fact, each in their separate capacity if more than one is named above, to sign its name as surety to, and to execute, seal and acknowledge any and all bonds, undertakings, contracts and other written instruments in the nature thereof on behalf of the Companies in their business of guaranteeing the fidelity of persons, guaranteeing the performance of contracts and executing or guaranteeing bonds and undertakingsifed�oritted ituany actions or proceedings allowed by law. IN WITNESS WHEREOF, the Companies have caused this instru tle s s s 19� du of February 2003 P ?rq t .dBA.. , ' Y Seaboard Surety Company�yy v-"" kbn'ited States Fidelity and Guaranty Company St. Paul Fire and Marine Inogr('itiini` ,-f` Fidelity and Guaranty Insurance Company St. Paul Guardian Insurance om r ` R iA i" -1 � Fidelity and Guaranty Insurance Underwriters, Inc. St. Paul Mercury Insurance' N , o ` HF[ i ; OOY ly Les �n Jy R`y1 2 4�.,SE AL i4m �,'.. ago 197, PETER W. CARMAN, Vice President s > ,,� L. j�sar f ,p fast a °I3.\NNy ,tatjFY State of Maryland City of Baltimore THOMAS E. HUIBREGTSE, Assistant Secretary On this 19, day of Fe1lIUary2003 , before me, the undersigned officer, personally appeared Peter W. Cannan and Thomas E. Huibregtse, who acknowledged themselves to be the Vice President and Assistant Secretary, respectively, of Seaboard Surety Company, St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, United States Fidelity and Guaranty Company, Fidelity and Guaranty Insurance Company, and Fidelity and Guaranty Insurance Underwriters, Inc.; and that the seals affixed to the foregoing instrument are the corporate seals of said Companies; and that they, as such, being authorized so to do, executed the foregoing instrument for the purposes therein contained by signing the names of the corporations by themselves as duly authorized officers. "m In Witness Whereof, J hereunto set my hand and official seal. m ��HY $ 0 g C i My Commission expires the 1St day of July, 2006. {b �p REBECCA EASLEY-ONOKALA, Notary Public aE cnr 86203 Rev. 7-2002 Printed in U.S.A. CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California ss. County of Orange On April 21 2004 before me, Kristen S. Paulino, Notary Public Det. Name one Title of Moor to g.,'Jaae Doe, Notary Publ¢') personally appeared Steve Kirschner Nam(s) of Slgneh.) KRISTEN S. PAULINO t] COMM. #1413262 NOIARY PUBLIC -CALIFORNIA 3 ORANGE COUNTY My Comm. Exp. May 20, 2007 personally known to me ❑ proved to me on the basis of satisfactory evidence to be the person whose name( Is subscribed to the within instrument and acknowledged to me}Lia�Qs/t�ejj executed the same in C(hb�lad'/hl¢/(f�lrthorized capacity(i16, and that by hi 10;& signatur* on the instrument the personjbl, or the entity upon behalf of which the personN acted, executed the instrument. WIT E S my hand andficia eal. signaw. d lotary Puhlk OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Performance and Payment Rond Document Date: ! rin 120, 2004 Number of Pages: 1 Signer(s) Other Than Named Above: Kathleen hAaaS Capacity(ies) Claimed by Signer Signer's Name: Steve Kirschner ❑ Individual Top of thumb here Corporate Officer — Title(s): Vice President Partner — ❑Limited El General ❑ Attorney -in -Fact • Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Hardy & Harper, Inc. 01988 Nah.e.1 Notary Association • 9350 De Soto Ave., P 0. eoe 2402 • Ch.tawaft, CA 913132402 • wve.nea.r.l.t.,.1 Prod No. 5907 ReoMer Call TollFree1-603676L62 • 32400 PASEO ADEL.ANTO SAN JUAN CAPISTRANO, CA 92675 (949) 493-1171 (949) 493-1053 FAx www.sanjuancapstrano, org July 14, 2004 First Bank dba First Bank & Trust 25461 Rancho Niguel Road Laguna Niguel, CA 92677 Dear Sir or Madam: JVW4 j 10(OIPOAOTIO Esumse(o 1161 1776 MEMBERS OF THE CITY COUNCIL SAM ALLEVATO DIANE L. BATHGATE WYATT HART JOE SOTO DAVID M. SWERDLIN A partial surety was received by the City of San Juan Capistrano ON April 1, 2004, provided by Glenn Eichler. The surety is in the form of a Confirmation of Certificate of Deposit as described: Issued to: John W. Lloyd, for the benefit of the City of San Juan Capistrano 27221 Ortega Highway, Suite E #348 San Juan Capistrano, CA 92675 Account No. 435660000583 Issue Date: 2/18/2004 This letter serves to release this surety. The original — released — document is attached. If you have any questions, please do not hesitate to call me at (949) 443-6308. truly ,CMC — as noted cc: Sam Shoucair, Senior Engineer; Ray Holland, Interim Engineering & Building Director; Mr. Glen Eichler San Juan Capistrano: Preserving the Past to Enhance the Future • 1 CONFIRMATION OF CERTIFICATE OF DEPOSIT NON-NEGOTIABLE AND NON TRANSFERABLE Account No.: 435660000583 ISSUED TO: DEPOSITOR NAMES AND ACCOUNT ADDRESS First Bank dba First Bank & Trust JOHN W LLOYD For The Benefit Of The City Of San Juan Capistrano 27221 ORTEGA HWY STE E #348, SAN JUAN CAPISTRANO, CA 92675 25461 Rancho Niguel Rd Laguna Niguel, CA 92677- (949)448-5180 MemMr FDIC Issu MATURITY DATE TERM s.s.l T.I.N.♦ AUTOMATICALLY RENEWABLE DEPOSIT AMOUNT 2/1 $ 4 05/18/2004 3 Months) 554-42-2413 $ 25,800.00 1 D SINGLE MATURITY Interest will be paid at the rate of 1.050 percent with an annual percentage yield of 1.05 percent. Interest payment frequency: every 1 Month(5) 10 compounded/added to account ❑ payable to account number D pay by check The minimum deposit and minimum balance required to earn the staled annual percentage yield is $2,500.00 for certificate terms of 7-89 Days, 5 Months and 7 Months, and $1,000.00 for all other terms. TERMS AND CONDITIONS 1. Words or phrases preceded by a O are applicable only if the ❑ is marked. Phrases containing a blank space which is not filled in or completed with an N/A are not applicable. 2. The certificate is payable to the Depositor, or, if more than one, to either or any of them, or the survivors or survivor, on a maturity date. The Depository Institution is under no obligation to permit withdrawals by anyone other than the persons described above. 3. The interest rale for your certificate will be paid until the maturity date. 4. The certificate bears simple interest at the rate and basis set forth above. Interest is accrued daily and will be compounded and credited to your account according to the terms set forth above. 5. Interest begins to accrue on the business day you deposit non-cash items, such as checks. 6. After the certificate is opened, you may not make deposits into or withdrawals until the maturity date. 7. If the deposit is withdrawn before the maturity date, a penalty may be imposed. Refer to the penalty disclosure below for early withdrawal assessment. e. We use the daily balance method to calculate the interest on your account. This method applies a daily periodic rate to the principal in the account each day. 9. The annual percentage yield assumes principal and Interest will remain on deposit until maturity. A withdrawal will reduce earnings. 10. No right In, or title to the deposit on this Confirmation of Certificate of Deposit is transferable, except on the books of the Depository Institution, 11. All terms of this cartiflcate are subject to the applicable present and future laws and regulations of the state in which the once of the Bank which maintains your account is located and by federal law and any U.S. agency or instrumentality thereof, and all rules, regulations and practices now or hereafter adopted by the Depository Institution with respect hereto. 12. Depositor has contracted to keep the funds evidenced by this Confirmation of Certificate of Deposit on deposit from the Issue Date until the Maturity Date of the certificate. Accepmnce of a request by Depositor for a withdrawal of the funds prior to the Maturity Date is at the discretion of the Depository Institution. 13. Automatically Renewa le Certificates renew automatically on the Maturity Dale. If the term of the account Is greater than 29 days, you have a grace period of ten (10) calendar days after the maturity date to withdraw the funds without being charged a penalty. If the term of the account is 29 days or less, you have a grace period of one (1) calendar day to withdraw the funtls without being charged a penalty. If you withdraw the funds during the grace period, you will forfeit any Interest accrued after the automatic renewal. For automatip repawals of the certificate, interest will be paid at the rate then in effect at the Depository Institution for similar deposjts and any such renewals will be for a time period equal to the original term and subject to these terms and conditions. 14. Single Maturity Cerlifi a_tos are non-renewable at maturity and the funds on deposit in your certificate will be placed in a ran -interest bearing account. No interest will be paid on the deposit after maturity. EARLY WITHDRAWAL PENALTY: An early withdrawal penalty may be assessed to depositors who withdraw their certificate prior to its scheduled maturity. In no event shall such penally be less than seven (7) days simple interest on the certificate amount. The following is an explanation of our penalty. 1) Certificates of 29 days or less: If a certificate Is withdrawn prior to its original, renewed or extended maturity, the depositor shall forfeit an amount equal to the amount of interest on the amount withdrawn that would have been earned for the full term of the certificate at the Interest rate being paid on the certificate at the time of withdrawal, regardless of the length of time the funds withdrawn have remained in the certificate. 2) Certificates of 30 to 89 days: If a certificate is withdrawn prior to its original, renewed or extended maturity, the depositor shall forfeit an amount equal to one months interest on the amount withdrawn at the interest rate being paid on the certificate at the time of withdrawal, regardless of the length of time the funds withdrawn have remained in the certificate. 3) Certificates of 3 months or more but less than 1 year: If a Certificate is withdrawn prior to its original, renewed or extended maturity, the depositor shall forfeit an amount equal to three months interest on the amount withdrawn at the interest rate being paid on the certificate at the time of withdrawal, regardless of the length of time the funds withdrawn have remained in the certificate. 4) Certificates of 1 year or more: If a certificate is withdrawn prior to its original, renewed or extended maturity, the depositor shall forfeit an amount equal to the greater of (1) six months interest on the amount withdrawn at the interest rate being paid on the certificate at the time of withdrawal, regardless of the length of time the funds withdrawn have remained in the certificate, or (2) the Market Yield Adjustment. The Market Yield Adjustment is calculated as follows: (1) Determine the remaining term of the certificate in whole months and divide by 12. This is the "Time Factor". (2) Determine the average Treasury Constant Maturity Index (TCMI) rate for the previous week as provided by the Federal Reserve Bank's H-15 statistical release (or its equivalent if the H-15 release is discontinued). Use the rate for the TCMI term equal to the remaining term of the certificate, or the next longer TCMI term if the remaining term of the certificate is not equal to a term published by the Federal Reserve Bank. (3) Subtract the current interest rate being paid on the certificate from the TCMI rate determined in step 2. This is the Rate Factor. (4) Multiply the Rate Factor determined in step 3 by the amount of principal being withdrawn and by the Time Factor determined in step 1. The result is the "Market Yield Adjustment". TR'(BILIEArSEDfrom any Federal R�eeeserve Bank or from any First Bank office DATE ed. 4 (/v ` q By, Authorizetl Bank Signature !J_� / _ Customer Receipt PLF-121503 MEMORANDUM TO: Meg Monahan, City Clerk FROM: Sam Shoucair, Senior Engineer :� July 13, 2004 SUBJECT: Release of Certificate of Deposit associated with Eichler Agreement dated January 20, 2004 John Lloyd, who provided a Certificate of Deposit (CD), issued on February 18, 2004, in the amount of 25,8000, for the work of improvement associated with the subject agreement, has request the release of his CD. The contractordoing the work of improvement (Hardy & Harper, Inc.) has posted additional bonds in an amount $166,070.00 for the same work of improvement covered by Mr. Lloyd's CD. Please release the CD provided by John W. Lloyd for the improvement work associated with the subject agreement, as it is redundant. Attachment, copy of CD cc. Maria Guevara C:\MyFiles\Memos-Conditions\Bond matters with City Clerk\2004- Eichler Agreement- suretyi wpd . ___ • • CONFIRMATION OF CERTIFICATE OF DEPOSIT NON-NEGOTIABLE AND NON TRANSFERABLE Account No.: 435660000583 ISSUED TO: DEPOSITOR NAMES AND ACCOUNT ADDRESS First Bank dba First Bank & Trust JOHN W LLOYD For The Benefit Of The City Of San Juan Capistrano 27221 ORTEGA HWY STE E #348, SAN JUAN CAPISTRANO, CA 92675 25461 Rancho Niguel Rd Laguna Niguel, CA 92677- (949)448-5180 MemWr FDIC SSUDATE MATUmTY DATE TERM S.S. I T.I.N. i AUTOMATICALLY all1101 LE REKEWMATURRY DEPOart AMOUNT 2 / 1 8 / 0 4 7718 0`.[/18/2004 3 Month(s) 554.42-2413 $ 25,800.00 ❑ Interest will be paid at the rate of 1.050 percent with an annual percentage yield of 1.05 percent. Interest payment frequency. evaw 1 Month(s) 13 compounded/added to account ❑ payable to account number ❑ pay by check The minimum deposit and minimum balance required to earn the stated annual percentage yield is $2,500.00 for certificate terns of 7-89 Days, 5 Months and 7 Months, and $1,000.00 for all other terms. TERMS AND CONDITIONS 1. Words or phrases preceded by a O are applicable only H the O is marked. Phrases containing a blank space which Is not filled In or completed with an WA are not applicable. 2. The certificate Is payable to the Depositor, or, if more than one, to either or any of them, or the survivors or survivor, on a maturity date. The Depository Institution is under ne obligation W permit withdrawals by anyone other than the persons described above. 3. The Interest rate for your certificate will be paid until the maturity date. 4. The certificate bears simple Interest at the rate and basis set forth above. Interest is accrued daily and will be compounded and credited to your account according to the terms set forth above. 5. Interest begins to accrue on the business day you deposit non-cash items, such as checks. 6. Atter the certificate Is opened, you may not make deposits into or withdrawals until the maturity date. 7. If the deposit is withdrawn before the maturity date, a penalty may be imposed. Refer to the penalty disclosure below for early withdrawal assessment. 8. We use the dally balance method to calculate the Interest on your account. This method applies a daily periodic rate to the principal in the account each day. 9. The annual percentage yield assumes principal and interest will remain on deposit until maturity. A withdrawal will reduce earnings. 10. No right in, or title to the dbposit on this Confirmation of Certificate of Deposit is transferable, except on the books of the Depository Institution. 11. All terms of this certificate are subject to the applicable present and future laws and regulations of the state in which the office of the Bank which maintains your account is located and by federal law and any U.S. agency or instrumentality thereof, and all rules, regulations and practices now or hereafter adopted by the Depository Institution with respect hereto. 12. Depositor has contracted to keep the funds evidenced by this Confirmation of Certificate of Deposit on deposit from the Issue Date until the Maturity Date of the certificate. Acceptance of a request by Depositor for a withdrawal of the funds prior to the Maturity Dale is at the discretion of the Depository Institution. 13. Automatically Renewable Certificates renew automatically on the Maturity Date. If the term of the account is greater than 29 days, you have a grace period of ten (10) calendar days after the maturity date to withdraw the funds without being charged a penalty. If the term of the account is 29 days or less, you have a grace period of one (1) calendar day to withdraw the funds without being charged a penalty. If you withdraw the funds during the grace period, you will forfeit any Interest accrued after the automatic renewal. For automatic renewals of the certificate, interest will be paid at the rate then in effect at the Depository Institution for similar deposits and any such renewals will be for a time period equal to the original term and subject to these terms and conditions. 14. Single Maturity Certificates are non-renewable at maturity and the funds on deposit in your certificate will be placed in a non-interest bearing account. No interest will be paid on the deposit after maturity. EARLY WITHDRAWAL PENALTY: An early withdrawal penalty may be assessed to depositors who withdraw their certificate prior to its scheduled maturity. In no event shall such penalty be less than seven (7) days simple interest on the certificate amount. The following is an explanation of our penalty. 11 Certificates of 29 days or less: If a certificate is withdmwn prior to its original, renewed or extended maturity, the depositor shall forfeit an amount equal to the amount of Interest on the amount withdrawn that would have been earned for the full term of the certificate at the Interest rate being paid on the certificate at the time of withdrawal, regardless of the length of time the funds withdrawn have remained in the certificate. 2) Certificates of 30 to 69 days: If a certificate is withdrawn prior to its original, renewed or extended maturity, the depositor shall forfeit an amount equal to one months interest on the amount withdrawn at the interest rate being paid on the certificate at the time of withdrawal, regardless of the length of time the funds withdrawn have remained in the certffi ate. 3) Certificates of 3 months or more but less than 1 year: If a certificate is withdrawn prior to its original, renewed or extended maturity, the depositor shall forfeit an amount equal to three months interest on the amount withdrawn at the interest rate being paid on the certificate at the time of withdrawal, regardless of the length of time the funds withdrawn have remained in the certificate. 4) Certificates of 1 year or more: If a certificate is withdrawn prior to its original, renewed or extended maturity, the depositor shall forfeit an amount equal to the greater of (1) six months interest on the amount withdrawn at the interest rate being paid on the certificate at the time of withdrawal, regardless of the length of time the funds withdrawn have remained in the certificate, or (2) the Market Yield Adjustment. The Market Yield Adjustment is calculated as follows: (1) Determine the remaining term of the certificate in whole months and divide by 12. This is the Time Factor. (2) Determine the average Treasury Constant Maturity Index (TCMI) rate for the previous week as provided by the Federal Reserve Banks H-15 statistical release (or its equivalent if the H-15 release is discontinued). Use the rate for the TCMI term equal to the remaining term of the certificate, or the next longer TCMI term if the remaining term of the certificate is not equal to a term published by the Federal Reserve Bank. (3) Subtract the current interest rate being paid on the certificate from the TCMI rate determined in step 2. This Is the Rate Factor. (4) Multiply the Rate Factor determined in step 3 by the amount of principal being withdrawn and by the Time Factor determined in step 1. The result is the 'Markel Yield Adjustment". The TCMI rates are available from any Federal Reserve Bank or from any First Bank office. By: Authonzed Bank Signature Customer Receipt etc-tztsoa n LJ MEMORANDUM TO: Meg Monahan, City Clerk FROM: Sam Shoucair, Senior Engineer • April 1, 2004 SUBJECT: Sureties associated with Eichler Agreement dated January 20, 2004 The partial surety, provided by Glenn Eichlerfor the subject agreement, has been reviewed by Engineering and building department staff and by the City Attorney and was determined under special circumstances to be acceptable for its intented use. This surety will only cover the work associated with the street improvement along the Eichler property frontage. Priorto releasing the remaining $46,600 and the commencement of any construction work on the drainage channel improvement, (indicated in attached exhibit "A"), the Developer/Eichler will be required to post the appropriate bonds in accordance with the executed Agreement. Attachments cc. John Shaw Bill Huber Maria Guevara C:\MyFiles\Memos-Conditions\Bond matters with City Clerk\2004- Eichler Agreement- surety.wpd n PUBLIC IMPROVEMENT AGREEMENT ASSOCIATED WITH THE DEVELOPMENT OF ASSESSOR PARCEL NUMBER: 666-048-12 & 13 AT 31810 AND 31812 SAN JUAN CREEK ROAD EXHIBIT "A" WORKS OF IMPROVEMENT Type of Improvements: Street and Appurtenant Improvements Storm Drain Channel Improvements and Trail / Maintenance Road Estimated Construction Cost Or Bond Amount $25,800 $46,600 0 Maria Guevara To: Dottie Crawford; Joan Ross Cc: Sam Shoucair Subject: Release of check Hi, Please release partial payment of $25,800 to C provides bonds for the remaining construction Thank you. Maria Guevara, Secretary City of San Juan Capistrano City Clerk Division (949) 443-6309 0 0 INTER -D ARTMENTAL MEMORANDUM TO: John ShyReiew orney FROM: 14"14 DEPT: City Atto/ DEPT: C ( kt{ SUBJECT: Docume` DATE:—3 / 2� PHONE EXT: ATTACHED ARE THE agrapment, etc.): describe document, i.e. consultant PLEASE: (2) For your review and comment (3) For your information (4) As requested (5) (A) Keep for your files [ ] (A) When completed, return to: M9-� k (0041ffAExt. (C) Date/Time needed: CITY ATTORNEY'S COMMENTS I AN �y]• • i + �W�o [ ] 775 V4 (s okK v 6121 d� 2 9 2004 �pU 0 0 CONFIRMATION OF CERTIFICATE OF DEPOSIT NON-NEGOTIABLE AND NON TRANSFERABLE Account No.: 435660000583 ISSUED TO: DEPOSITOR NAMES AND ACCOUNT ADDRESS First Bank dba First Bank & Trust JOHN W LLOYD For The Benefit Of The City Of San Juan Capistrano 27221 ORTEGA HWY STE E #348, SAN JUAN CAPISTRANO, CA 92675 25461 Rancho Niguel Rd Laguna Niguel, CA 92677- (949)448-5180 Member FDIC ISSUE DATE I MATURITY DATE TERMS.S./T.I.N.e AUTOMATICALLY RENEWABLE RENEW DEPOSIT AMOUNT 2/18/04 05/18/2004 3 Month(s) 554-42-2413 $ 25,800.00 ❑ SING�MATURRY Interest will be paid at the rate of 1.050 percent with an annual percentage yield of 1.05 percent. Interest payment frequency: every 1 Month(s) 10 compounded/added to account ❑ payable to account number ❑ pay by check The minimum deposit and minimum balance required to earn the stated annual percentage yield is $2,500.00 for certificate terms of 7-89 Days, 5 Months and 7 Months, and $1,000.00 for all other terms. TERMS AND CONDITIONS 1. Words or phrases preceded by a ❑ are applicable only if the ❑ is marked. Phrases containing a blank space which is not filled in or completed with an N/A are not applicable. 2. The certificate is payable to the Depositor, or, if more than one, to either or any of them, or the survivors or survivor, on a maturity date. The Depository Institution is under no obligation to permit withdrawals by anyone other than the persons described above. 3. The interest rale for your certificate will be paid until the maturity date. 4. The certificate bears simple interest at the rate and basis set forth above. Interest is acomed daily and will be Compounded and credited to your account according to the terms set forth above. 5. Interest begins to accrue on the business day you deposit non-cash items, such as checks. 6. After the certificate is opened, you may not make deposits into or withdrawals until the maturity date. 7. If the deposit is withdrawn before the maturity date, a penalty may be imposed. Refer to the penalty disclosure below for early withdrawal assessment. 8. We use the daily balance method to calculate the interest on your account. This method applies a daily periodic rate to the principal in the account each day. 9. The annual percentage yield assumes principal and interest will remain on deposit until maturity. A withdrawal will reduce earnings. 10. No right in, or title to the deposit on this Confirmation of Certificate of Deposit is transferable, except on the books of the Depository Institution. 11. All terms of this certificate are subject to the applicable present and future laws and regulations of the state in which the office of the Bank which maintains your account is located and by federal law and any U.S. agency or instrumentality thereof, and all rules, regulations and practices now or hereafter adopted by the Depository Institution with respect hereto. 12. Depositor has contracted to keep the funds evidenced by this Confirmation of Certificate of Deposit on deposit from the Issue Date until the Maturity Date of the certificate. Acceptance of a request by Depositor for a withdrawal of the funds prior to the Maturity Date is at the discretion of the Depository Institution. 13. Automatically Renewable Certificates renew automatically on the Maturity Date. If the term of the account is greater than 29 days, you have a grace period at ten (10) calendar days after the maturity date to withdraw the funds without being charged a penally. If the term of the account is 29 days or less, you have a grace period of one (1) calendar day to withdraw the funds without being charged a penalty. If you withdraw the funds during the grace period, you will forfeit any interest accrued after the automatic renewal. For automatic renewals of the certificate, interest will be paid at the rate then in effect at the Depository Institution for similar deposits and any such renewals will be for a time period equal to the original term and subject to these terms and conditions. 14. Single Maturity Certificates are non-renewable at maturity and the funds on deposit in your certificate will be placed in a non-interest bearing account. No interest will be paid on the deposit after maturity. EARLY WITHDRAWAL PENALTY: An early withdrawal penally may be assessed to depositors who withdraw their certificate prior to its scheduled maturity. In no event shall such penalty be less than seven (7) days simple interest on the certificate amount. The following is an explanation of our penalty. 1) Certificates of 29 days or less: If a certificate is withdrawn prior to its original, renewed or extended maturity, the depositor shall forfeit an amount equal to the amount of interest on the amount withdrawn that would have been earned for the full term of the certificate at the interest rate being paid on the certificate at the time of withdrawal, regardless of the length of time the funds withdrawn have remained in the certifcate. 2) Certificates of 30 to 89 days: If a certifcale is withdrawn prior to its original, renewed or extended maturity, the depositor shall forfeit an amount equal to one months interest on the amount withdrawn at the interest rate being paid on the certificate at the time of withdrawal, regardless of the length of time the funds withdrawn have remained in the certificate. 3) Certificates of 3 months or more but less than 1 year: If a certificate is withdrawn prior to its original, renewed or extended maturity, the depositor shall forfeit an amount equal to three months interest on the amount withdrawn at the interest rate being paid on the certificate at the time of withdrawal, regardless of the length of time the funds withdrawn have remained in the certificate. 4) Certificates of 1 year or more: If a certificate is withdrawn prior to its original, renewed or extended maturity, the depositor shall forfeit an amount equal to the greater of (1) six months interest on the amount withdrawn at the interest rate being paid on the certificate at the time of withdrawal, regardless of the length of time the funds withdrawn have remained in the certificate, or (2) the Market Yield Adjustment. The Market Yield Adjustment is calculated as follows: (1) Determine the remaining term of the certificate in whole months and divide by 12. This is the "Time Factor'. (2) Determine the average Treasury Constant Maturity Index (TCMI) rain for the previous week as provided by the Federal Reserve Bank's H-15 statistical release (or its equivalent if the H-15 release is discontinued). Use the rate for the TCMI term equal to the remaining term of the certificate, or the next longer TCMI term if the remaining term of the certificate is not equal to a term published by the Federal Reserve Bank. (3) Subtract the current interest rate being paid on the certificate from the TCMI rate determined in step 2. This is the Rate Factor. (4) Multiply the Rale Factor determined in step 3 by the amount of principal being withdrawn and by the Time Factor determined in step 1. The result is the "Market Yield Adjustment". The TCMI rates are available from any Federal Reserve Bank or from any First i3ank office. By: Authorizetl Bank Signature Customer Receipt FLr-121509 RECORDING REQUESTED BY: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 AND WHEN RECORDED, MAIL TO: Margaret R. Monahan, City Clerk Recorded in Official Records, County of Orange City San Juan Capistrano Tom Daly, Clerk -Recorder 324000 Paseo Adelanto IIIIIIIIIIIIIIIIII I IIIIIIIIIIIIIIIIIIIIII IIIIIIIIIIII IIIINO FEE San Juan Capistrano, CA 92675 200400007828101:59pm 02/02104 200 91 Al2 11 Exempt from Recording Fees: 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 Gov Code 27383 & 6103 City of San Juan Capistrano This Space for Recorder's Use Only l� Title of Document: Financial agreement for right-of-way acquisition in exchange for construction of public improvements at 31810 and 31812 San Juan Creek Road, Glenn tt� Eichler (Assessor Parcel Number: 666-048-12 & 13 rl ;- C: � 0 0 FINANCIAL AGREEMENT FOR RIGHT-OF-WAY ACQUISITION IN EXCHANGE FOR CONSTRUCTION OF PUBLIC IMPROVEMENTS AT 31810 AND 31812 SAN JUAN CREEK ROAD, GLENN EICHLER, (ASSESSOR PARCEL NUMBER: 666-048-12 &131 THIS FINANCIAL AGREEMENT ("Agreement") is made and entered into this 20th day of January, 2004, by and between the City of San Juan Capistrano, a Municipal Corporation, hereinafter referred to as the "City' and Glenn and Kathy Eichler, and Rick and Diann Eichler, whose mailing address is 30448 Rancho Viejo Road, Suite 110, San Juan Capistrano, California 92675, herein referred to as "Developer". WITNESSETH WHEREAS, in connection with development of its land, Developer has applied for and was granted a Lot Line Adjustment to accommodate two single family detached residential homes located on 31810 and 31812 San Juan Creek Road respectively; and, WHEREAS, the City has an interest in facilitating the street widening and appurtenances on San Juan Creek Road along the frontage of the subject properties, specifically referred to as Assessor Parcel Numbers 666-048-12 and 13 respectively; and, WHEREAS, the Developer has an interest in reducing the width of an existing public drainage/equestrian trail easement on Developer's south westerly side of property and has agreed to design and construct, at Developer's cost, certain modifications to an existing storm drain channel located within said easement; and, WHEREAS, the City requires that the design and construction of said modification to the existing storm drain channel within the drainage/equestrian trail easement would continue to provide, at minimum, a 12 foot wide equestrian trail/maintenance access; and, WHEREAS, the Developer has agreed to dedicate to the City the necessary public right-of-way for ultimate street width and utilities purposes and to construct, to the satisfaction of the City Engineer, street improvements and all related appurtenances along said properties' frontages, based upon City payment of $109,050, of which $73,750.00 are for right-of-way acquisition and $35,300 for partial financial participation towards the relocation of an existing drainage culvert which would be interfering with the proposed widened street, and also based upon City waving the following fees: Any in-house plan check and inspection fees for the street widening and drainage improvement. (Third party review of Soils Reports, Drainage Improvement Plans and Hydrology Hydraulic Studies shall be subject to fee payment); 2. City processing fees for abandonment of section of drainage easement; 3. City processing fees for acceptance of public right -of way for San Juan Creek Road. WHEREAS, the $73,750.00, described above, represents the City approved appraisal amount for the subject right-of-way acquisition, paid to the City by Citibank (Formerly Glendale Federal Savings and Loan) in order to meet the conditions of approval set forth in City Council Resolution 86-6-17-4, for the development of Tentative Tract Map 12633 by the Subdivider, Dividend Development Company; and, WHEREAS, City desires to assure that said proposed street widening and channel improvements will be done per City approved plans and in a good workmanlike manner and in accordance with the codes now in force and effect in the City of San Juan Capistrano, California, the terms and conditions of which are incorporated herein by reference. NOW, THEREFORE, in consideration of the premises and promises hereinafter contained, City and Developer agree as follows: SECTION 1. PAYMENT AGREEMENT. Upon receiving the following items from the Developer, the City shall then process, for payment to the Developer, the amount of $73,750.00 for the right-of-way dedication along the street frontages of Assessor Parcel Numbers 666-048-12 and 666-048-13. The proper right-of-way dedication documentation 2. City approved Street & Storm Drain Improvement Plans, as specified in Section 2 below Sureties for all the works of improvement, as specified in Section 3 below. SECTION 2. DEVELOPER'S OBLIGATIONS. Developer shall dedicate to the City, for ultimate street width (to back of proposed sidewalk along San Juan Creek Road) and utility purposes, the necessary public right-of-way along Developer properties' frontages to accommodate, to the satisfaction of the City Engineer, a secondary Arterial Highway. 2. Developer shall, at his own cost and expense, provide all required tests, design work, equipment, materials and labor in order to complete all of the works of improvement (the "Works of Improvement"), set forth in Exhibit "A", to the satisfaction of the City Engineer. Such work of improvement shall include but not be limited to the construction of street widening improvements, sidewalk, curb and gutter, relocation of an inlet culvert structure and all related appurtenances. The Encroachment Permit and Street Improvement Plans, which further defines the improvements in Exhibit "A", are on file in the office of the City Engineer, and all documents referenced in Exhibit "A" are incorporated herein by reference. SECTION 3. DEVELOPER'S SECURITY. Developer shall, at all times beginning with the execution of this agreement, guarantee Developer's performance of this agreement by providing City with the following security instruments (the "Security Instruments"), on forms approved by City for the purposes and in the amounts as follows: (1) A Faithful Performance Bond to ensure faithful performance of this agreement in regard to said improvements in the amount of 100% of the estimated cost of construction of the improvements; and (ii) A Labor and Materials Bond to secure payment to any contractor, subcontractor, persons renting equipment orfurnishing laboror materials for the improvements required to be constructed or installed pursuant to this agreement in the additional amount of 100% of the estimated cost of construction of the improvements; In order to guarantee and warranty the Works of Improvement and in addition to the security instruments referenced in Paragraph 3 above, Developer shall provide to City the following Security Instruments: (1) Prior to the City's final acceptance of the Works of Improvement, Developer shall provide to City a Warranty Bond for Works of Improvement warranting the accepted Works of Improvement for a period of one (1) year following said acceptance against any defective work or labor done or defective F_, 11 material furnished. The amount of such Warranty Bond for Works of Improvement shall be equal to twenty-five percent (25%) of the estimated construction cost set forth in Exhibit "A", or a suitable amount determined by the City Engineer. SECTION 4. INDEMNITY AND HOLD HARMLESS. Developer shall indemnify, defend and hold harmless the City of San Juan Capistrano and their respective officers, officials, employees and agents from and against any and all liability, loss, damage, expense, costs (including without limitation, attorneys' fees and costs, and fees of litigation) of every nature arising out of or in connection with Developer's use of this Agreement and Developer's performance of work hereunder or its failure to comply with any of its obligations contained in this Agreement. SECTION 5. TERM. This Agreement shall continue in full force and effect until all work is complete and accepted by the City Engineer. Upon completion and acceptance of work, this Agreement shall terminate and all obligations of the City and the Developer will be considered met provided the City or the Developer is not in default hereunder or under the terms of the Note. SECTION 6. ATTORNEY'S FEES. In the event of any litigation between the parties arising out of or related to this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and costs, in addition to whatever other relief such party may be granted. SECTION 7. FORCE MAJEURE. None of the parties hereto shall be deemed to be in default if performance of the obligations required by this Agreement is delayed or becomes impossible because of any act of God, earthquake, fire, strike, sickness, accident, civil commotion, epidemic, act of government, its agencies or officers, or any legitimate cause beyond the control of the parties. SECTION 8. NOTICES. All notices required to be delivered under this Agreement or by law shall be delivered by one of the following means: (i) by personal delivery, (ii) by a reputable document delivery service that provides a receipt showing date and time of delivery, (iii) by United States mail, prepaid, certified, return receipt requested, or (iv) by facsimile transmission, if a fax number is listed below, and so long as the original of the notice is concurrently delivered by one of the other acceptable methods. Notices shall be addressed rd as follows: If to City: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: City Clerk Telephone Number: (714) 493-1171 Fax Number: (714) 493-1053 If to Developer: Glenn and Rick Eichler 30448 Rancho Viejo Road, Suite 110 San Juan Capistrano, CA 92675 Telephone Number: (949) 248-5459 Fax Number: (949) 248-0889 Notices delivered by personal delivery, reputable document delivery service, or facsimile transmission in accordance with the terms of this Section shall be effective upon receipt. Notices delivered by mail shall be effective at the earlier of (i) actual receipt, or (ii) if not deliverable, the date of first attempted delivery. The parties hereto may from time to time designate such other address or addresses for receipt of notices by giving notice in accordance with the terms of this Section. SECTION 9. NO ASSIGNMENT. Developer shall not assign or transfer this Agreement to any person, firm, or entity without the prior written consent of City, which consent City may give or withhold in its sole and absolute discretion. SECTION 10. ENTIRE AGREEMENT. This Agreement contains the entire agreement and understanding of the parties concerning the subject matter herein. This Agreement constitutes the entire understanding and agreement of the parties, integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the parties with respect to all or any part of the subject matter hereof. IN WITNESS WHEREOF, two (2) identical counterparts of this agreement, each of which shall for all purposes be deemed an original thereof, have been duly executed by the Developer herein named on the day of , 2004, the name and corporate seal of each corporate party being hereto affixed and these presents duly signed by its undersigned representative(s) pursuant to authority of its governing body. 0 107:9Awo]ZIAZ By: A- ._ &1 hn Eichler, By:.:' lLII(i% Kathy Eichler, By:, ( a L Rick Eichler, By: kCQ� Diann Eichler, (Attach Notary Acknowledgment) Attachment: Exhibit "A" 9 CITY OF SAN JUAN CAPISTRANO M CuffiffG 119 APPROVED AS TO FORM TY ATTORNEY • CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of Q� ss. �j0.- • On 15 &cC before me, O�.� Lv�c�9,�rv. rbc 1'vigtac , Data I Name and Title of OPocer (e.g., "Jane Doe, N ublic) personally appeared kti" OL_ c -it ❑ pessonally known to me proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) ire subscribed to the within instrument and acknowledged to me that W2fre/they executed the same in bis/hertheir authorized capacity(ies), and that by ,bts/ki5rTtheir signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my handandofficial seal. �y�rc1 �L9..Iv�c�9.u.Jcri. Place Notary Seal Above Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: ❑ Individual Top of thumb here ❑ Corporate Officer—Title(s): ❑ Partner —❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: 01999 National Notary Assocaton • 9350 De Solo Ave., P0. Box 2402 • Clvtswonb, CA 913132402 • x ,alionalnotao org Prod No. 5907 Reorder: Call Toll -Free 1801 0 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California ss. County of Q� 0 On before me,n pate Name and Title of Officer (e g., 'Jane Doe, Notary Public" personally appeared -n�— rsonally known to me CI proved to me on the basis of satisfactory evidence *MYANNE ANDERSON to be the person(s) whose name(s) ire Commis m#12=41 subscribed to the within instrument and Notary Public - CdMbaft acknowledged to me that he%attb/they executed Orange County – the same in his/ herTtheir authorized Con"n•Mar13,=t capacity(ies), and that by I}is/ er/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WIT ESS my hand and official seal. Place Notary Seal Above Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: ❑ Individual ❑ Corporate Officer — Title(s): ❑ Partner —❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Repre5enting: Number of Pages: RIGHT THUMBPRINT OF SIGNER 01999 National Notary Assorefuno • 9350 W Solo Ave., P.O. Box 2002 • Cbals onb. CA 913132402 • vmw.lwlionalr ary.org Prot. No. 597 Reorder: Call Toll -Free 1600.6]6-682] PUBLIC AGENCY FORM OF ACKNOWLEDGEMENT State of California ) County of Orange ) ss. City of San Juan Capistrano ) (Gov't Code 40814 & Civil Code 1 181) On January 20, 2004, before me, Margaret R. Monahan, Cites, personally appeared Joe Soto Mayor , personally known tome to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. (SEAL) WITNESS my hand and official seal. R. Monahan, City Clerk OPTIONAL Capacity Claimed by Signers Description of Attached Document Financial Agreement for right of way Mayor acquisition.....(31810 & 31812 San Juan Creek Road, Eichler— APN 666-048-12 & 13 Title Title or Type of Document Signers are Representing City of San Juan Capistrano January 20, 2004 Date of Document PUBLIC IMPROVEMENT AGREEMENT ASSOCIATED WITH THE DEVELOPMENT OF ASSESSOR PARCEL NUMBER: 666-048-12 & 13 AT 31810 AND 31812 SAN JUAN CREEK ROAD EXHIBIT "A" WORKS OF IMPROVEMENT Type of Improvements: Street and Appurtenant Improvements Storm Drain Channel Improvements and Trail / Maintenance Road 7 Estimated Construction Cost Or Bond Amount $25,800 $46,600 CITY OF SAN JUAN CAPISTRANO INTER -DEPARTMENTAL MEMORANDUM TO: John Shaw, City Attorney DEPT: City Attorney SUBJECT: Document Review FROM:�(/_U�l DEPT: C T LL to (z K DATE: PHONE EXT: NOTE: IF THIS IS A "RUSH" ITEM. PLEASE COMPLETE IN RED INK ATTACHED ARE THE FOLLOWING (please describe document, i.e. agreement, contract, consultant agrp9ment, etc.): i — n 4 ,1 _ PLEASE: (1) For your approval and (2) For your review and comment [ ] 37D Mtd OK (3) For your information (4) As requested (5) !� [ ] &9,4 . t , i (A) Keep for your files [ ] X� , (A) When completed, return to: [ ]Y ar�A Ext. ,3� c� �► Q ,ov k (C) Date/Time needed: CITY ATTORNEY'S COMMENTS n V' �/ r 32400 PASEO ADELANTo SAN JUAN CAPISTRANO, CA 92675 (949) 493.1171 (949) 4931053 FAx www.sanjuancapistrano.org �1, 2004 Not Compar;;,; C;=Y ed with Original Clerk -Recorder's Office County of Orange P.O. Box 238 Santa Ana, California 92701 dwan ii In(H IOAAIiI • EST lluSIT a 1961 1776 MEMBERS OF THE CITY COUNCIL CITY MANAGER DIANE L. BATHGATE JOHN S. GELFF WYAT HART JOE SOTO DAVID M. SWERDLIN DAVE ADAMS Recorded in Official Records, County of Orange Tom Daly, Clerk -Recorder IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIllillllllllllllllllllNO FEE 200400007828101:59pm 02102104 200 91 Al2 11 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 Re: Financial agreement for right-of-way acquisition in exchange for construction of public improvements at 31810 and 31812 San Juan Creek Road, Glenn Eichler (APN 666-048-12 & 13 SENT VIA CERTIFIED MAIL CONFORMED COPY Not Compared with Original The noted document is enclosed for recording: When placed of record, please return the recorded document to this office. A duplicate copy of this letter is enclosed. Please stamp Document Number and date of recording on the duplicate letter and return it to this office in the enclosed, stamped, self-addressed envelope at your earliest convenience. Thank you for your assistance. Very truly yours ity William M. Huber, Engineering and Building Director Sam Shoucair, Senior Engineer San Juan Capistrano: Preserving the Past to Enhance the Future 32400 PASEO ADELANTO SAN JUAN CAPISTRANO, CA 92675 (949) 4931171 (949) 493.1053 FAx www.sanjuancapistrano.org January 21, 2004 Clerk -Recorder's Office County of Orange P.O. Box 238 Santa Ana, California 92701 dewe j IIIDRRORIRR • R" STRmsRG 1961 1776 MEMBERS OF THE CITY COUNCIL CITY MANAGER DIANE L. 13ATHGATE JOHN S. GELFF WYATT HART JOE SOTO DAVID M. SWERDLIN DAVEADAMS Re: Financial agreement for right-of-way acquisition in exchange for construction of public improvements at 31810 and 31812 San Juan Creek Road, Glenn Eichler (APN 666-048-12 & 13 SENT VIA CERTIFIED MAIL The noted document is enclosed for recording: When placed of record, please return the recorded document to this office. A duplicate copy of this letter is enclosed. Please stamp Document Number and date of recording on the duplicate letter and return it to this office in the enclosed, stamped, self-addressed envelope at your earliest convenience. Thank you for your assistance. Very truly yours J )g and Building Director eer Preserving the Past to Enhance the Future 32400 PASEO ADELANTO SAN JUAN CAPISTRANO, CA 92675 (949) 493-1171 (949) 493-1053 FAX www.san/uancapistrano.org January 21, 2004 waft �, ! I� mmnronmm • Isanausnao 1 1961 1776 NOTIFICATION OF ACTION BY THE CITY COUNCIL OF SAN JUAN CAPISTRANO MEMBERS OF THE CITY COUNCIL CITY MANAGER DIANE L. BATHGATE JOHN S. GELFF WYATT HART JOE SOTO DAVID M. SWERDLIN DAVE ADAMS On January 20, 2004 the City Council of San Juan Capistrano met regarding: "Consideration of a Financial Agreement for the Construction of Street Frontage Improvements at 31810 and 31812 San Juan Creek Road, (Glenn & Rick Eichler)" Item No. G 2b The following action was taken at the meeting: Final agreement with Glenn and Rick Eichler and their respective spouses for constructing street frontage improvements approved; the Mayor authroized to execute the agreement; and the City Clerk directed to forward the agreement to the Orange County Recorder for recordation. The approved agreement will be forwarded to the Recorder today. This process takes approximately 3 weeks. A copy of the recorded document will be forwarded to appropriate parties, by Sam Shoucair, when received by the City. If you have any questions regarding this action, please contact Sam Shoucair, Senior Engineer at 443-6355 for more detailed information. Thank you, Me Monaan, CMC Citk Clerk Cc: Glenn and Rick Eichler'; William M. Huber, Engineering and Building Director; Sam Shoucair, Senior Engineer San Juan Capistrano: Preserving the Past to Enhance the Future 0 RECORDING REQUESTED BY: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 AND WHEN RECORDED, MAIL TO: Margaret R. Monahan, City Clerk City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Exempt from Recording Fees: Gov Code 27383 & 6103 City of San Juan Capistrano 0 This Space for Recorder's Use Only Title of Document: Financial agreement for right-of-way acquisition in exchange for construction of public improvements at 31810 and 31812 San Juan Creek Road, Glenn Eichler (Assessor Parcel Number: 666-048-12 & 13 • FINANCIAL AGREEMENT FOR RIGHT-OF-WAY ACQUISITION IN EXCHANGE FOR CONSTRUCTION OF PUBLIC IMPROVEMENTS AT 31810 AND 31812 SAN JUAN CREEK ROAD, GLENN EICHLER, (ASSESSOR PARCEL NUMBER: 666-048-12 &131 THIS FINANCIAL AGREEMENT ("Agreement') is made and entered into this 20th day of January, 2004, by and between the City of San Juan Capistrano, a Municipal Corporation, hereinafter referred to as the "City" and Glenn and Kathy Eichler, and Rick and Diann Eichler, whose mailing address is 30448 Rancho Viejo Road, Suite 110, San Juan Capistrano, California 92675, herein referred to as "Developer". WITNESSETH WHEREAS, in connection with development of its land, Developer has applied for and was granted a Lot Line Adjustment to accommodate two single family detached residential homes located on 31810 and 31812 San Juan Creek Road respectively; and, WHEREAS, the City has an interest in facilitating the street widening and appurtenances on San Juan Creek Road along the frontage of the subject properties, specifically referred to as Assessor Parcel Numbers 666-048-12 and 13 respectively; and, WHEREAS, the Developer has an interest in reducing the width of an existing public drainage/equestrian trail easement on Developer's south westerly side of property and has agreed to design and construct, at Developer's cost, certain modifications to an existing storm drain channel located within said easement; and, WHEREAS, the City requires that the design and construction of said modification to the existing storm drain channel within the drainage/equestrian trail easement would continue to provide, at minimum, a 12 foot wide equestrian trail/maintenance access; and, WHEREAS, the Developer has agreed to dedicate to the City the necessary public right-of-way for ultimate street width and utilities purposes and to construct, to the satisfaction of the City Engineer, street improvements and all related appurtenances along said properties' frontages, based upon City payment of $109,050, of which $73,750.00 are for right-of-way acquisition and $35,300 for partial financial participation towards the • • relocation of an existing drainage culvert which would be interfering with the proposed widened street, and also based upon City waving the following fees: Any in-house plan check and inspection fees for the street widening and drainage improvement. (Third party review of Soils Reports, Drainage Improvement Plans and Hydrology Hydraulic Studies shall be subject to fee payment); 2. City processing fees for abandonment of section of drainage easement; 3. City processing fees for acceptance of public right -of way for San Juan Creek Road. WHEREAS, the $73,750.00, described above, represents the City approved appraisal amount for the subject right-of-way acquisition, paid to the City by Citibank (Formerly Glendale Federal Savings and Loan) in order to meet the conditions of approval set forth in City Council Resolution 86-6-17-4, for the development of Tentative Tract Map 12633 by the Subdivider, Dividend Development Company; and, WHEREAS, City desires to assure that said proposed street widening and channel improvements will be done per City approved plans and in a good workmanlike manner and in accordance with the codes now in force and effect in the City of San Juan Capistrano, California, the terms and conditions of which are incorporated herein by reference. NOW, THEREFORE, in consideration of the premises and promises hereinafter contained, City and Developer agree as follows: SECTION 1. PAYMENT AGREEMENT. Upon receiving the following items from the Developer, the City shall then process, for payment to the Developer, the amount of $73,750.00 for the right-of-way dedication along the street frontages of Assessor Parcel Numbers 666-048-12 and 666-048-13. The proper right-of-way dedication documentation 2. City approved Street & Storm Drain Improvement Plans, as specified in Section 2 below 3. Sureties for all the works of improvement, as specified in Section 3 below. 2 SECTION 2. DEVELOPER'S OBLIGATIONS. 1. Developer shall dedicate to the City, for ultimate street width (to back of proposed sidewalk along San Juan Creek Road) and utility purposes, the necessary public right-of-way along Developer properties' frontages to accommodate, to the satisfaction of the City Engineer, a secondary Arterial Highway. 2. Developer shall, at his own cost and expense, provide all required tests, design work, equipment, materials and labor in order to complete all of the works of improvement (the "Works of Improvement"), set forth in Exhibit "A", to the satisfaction of the City Engineer. Such work of improvement shall include but not be limited to the construction of street widening improvements, sidewalk, curb and gutter, relocation of an inlet culvert structure and all related appurtenances. The Encroachment Permit and Street Improvement Plans, which furtherdefines the improvements in Exhibit "A", are on file in the office of the City Engineer, and all documents referenced in Exhibit "A" are incorporated herein by reference. SECTION 3. DEVELOPER'S SECURITY. Developer shall, at all times beginning with the execution of this agreement, guarantee Developer's performance of this agreement by providing City with the following security instruments (the "Security Instruments"), on forms approved by City for the purposes and in the amounts as follows: (1) A Faithful Performance Bond to ensure faithful performance of this agreement in regard to said improvements in the amount of 100% of the estimated cost of construction of the improvements; and (ii) A Labor and Materials Bond to secure payment to any contractor, subcontractor, persons renting equipment orfurnishing labor or materials for the improvements required to be constructed or installed pursuant to this agreement in the additional amount of 100% of the estimated cost of construction of the improvements; In order to guarantee and warranty the Works of Improvement and in addition to the security instruments referenced in Paragraph 3 above, Developer shall provide to City the following Security Instruments: (1) Prior to the City's final acceptance of the Works of Improvement, Developer shall provide to City a Warranty Bond for Works of Improvement warranting the accepted Works of Improvement for a period of one (1) year following said acceptance against any defective work or labor done or defective 3 0 material furnished. The amount of such Warranty Bond for Works of Improvement shall be equal to twenty-five percent (25%) of the estimated construction cost set forth in Exhibit "A", or a suitable amount determined by the City Engineer. SECTION 4. INDEMNITY AND HOLD HARMLESS. Developer shall indemnify, defend and hold harmless the City of San Juan Capistrano and their respective officers, officials, employees and agents from and against any and all liability, loss, damage, expense, costs (including without limitation, attorneys' fees and costs, and fees of litigation) of every nature arising out of or in connection with Developer's use of this Agreement and Developer's performance of work hereunder or its failure to comply with any of its obligations contained in this Agreement. SECTION 5. TERM. This Agreement shall continue in full force and effect until all work is complete and accepted by the City Engineer. Upon completion and acceptance of work, this Agreement shall terminate and all obligations of the City and the Developer will be considered met provided the City or the Developer is not in default hereunder or under the terms of the Note. SECTION 6. ATTORNEY'S FEES. In the event of any litigation between the parties arising out of or related to this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and costs, in addition to whatever other relief such party may be granted. SECTION 7. FORCE MAJEURE. None of the parties hereto shall be deemed to be in default if performance of the obligations required by this Agreement is delayed or becomes impossible because of any act of God, earthquake, fire, strike, sickness, accident, civil commotion, epidemic, act of government, its agencies or officers, or any legitimate cause beyond the control of the parties. SECTION 8. NOTICES. All notices required to be delivered under this Agreement or by law shall be delivered by one of the following means: (i) by personal delivery, (ii) by a reputable document delivery service that provides a receipt showing date and time of delivery, (iii) by United States mail, prepaid, certified, return receipt requested, or (iv) by facsimile transmission, if a fax number is listed below, and so long as the original of the notice is concurrently delivered by one of the other acceptable methods. Notices shall be addressed M E as follows: 0 If to City: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: City Clerk Telephone Number: (714) 493-1171 Fax Number: (714) 493-1053 If to Developer: Glenn and Rick Eichler 30448 Rancho Viejo Road, Suite 110 San Juan Capistrano, CA 92675 Telephone Number: (949) 248-5459 Fax Number: (949) 248-0889 Notices delivered by personal delivery, reputable document delivery service, or facsimile transmission in accordance with the terms of this Section shall be effective upon receipt. Notices delivered by mail shall be effective at the earlier of (i) actual receipt, or (ii) if not deliverable, the date of first attempted delivery. The parties hereto may from time to time designate such other address or addresses for receipt of notices by giving notice in accordance with the terms of this Section. SECTION 9. NO ASSIGNMENT. Developer shall not assign or transfer this Agreement to any person, firm, or entity without the prior written consent of City, which consent City may give or withhold in its sole and absolute discretion. SECTION 10. ENTIRE AGREEMENT. This Agreement contains the entire agreement and understanding of the parties concerning the subject matter herein. This Agreement constitutes the entire understanding and agreement of the parties, integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the parties with respect to all or any part of the subject matter hereof. IN WITNESS WHEREOF, two (2) identical counterparts of this agreement, each of which shall for all purposes be deemed an original thereof, have been duly executed by the Developer herein named on the day of , 2004, the name and corporate seal of each corporate party being hereto affixed and these presents duly signed by its undersigned representative(s) pursuant to authority of its governing body. 0 DEVELOPER By:, j�hn Eichler, By: (`i o l✓� t: f t 1- Kathy Pchler, B- y: Rick Eichler, By: b6L ww X4� Diann Eichler, (Attach Notary Acknowledgment) Attachment: Exhibit "A" 0 0 CITY OF SAN JUAN CAPISTRANO APPROVED AS TO FORM 7 Y ATTORNEY Ll CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California ss. County of • On 1S N�tet_e_� before me, Dale n Name and Title of Officer (e.g., 'Jane Doe, N ublic') personally appeared 1,v <k c -'a 'IRT �`- `-All 1 ❑ prsonally known to me proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) ire subscribed to the within instrument and acknowledged to me that W..8he/they executed the same in 1,A/her/fheir authorized capacity(ies), and that by Aislesheir signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my handl/ land official seal. Place Notary Seal Above Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: ❑ Individual ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Number of Pages: 01999 Na4onal Notary Association • We De Soto Ave.. PO, Box 2002 • Chlewmtb, CA 91313 24 02 • vn raticalnMary.a,, P. N. 5907 Reorder. Cell Tot-Frea 1300.37& 7 0 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California ss. County of 0 On l5 before me,� Date Name and Title of OtBcer (a g.,'Jane Doe, Notary Public' personally appeared \�-�' Namo(s) of Signe onally known to me C proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) ire subscribed to the within instrument and acknowledged to me thatAe(etre/they executed the same in his/W-rtheir authorized capacity(ies), and that by i is/ er//their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WIT ESS my hand and official seal. Place Notary Seal Above Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: ❑ Individual ❑ Corporate Officer—Title(s): ❑ Partner —❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Number of Pages: 01999 National Notary Association • 935D De Soto Ave., PD. Box 2402 • Cratswortb CA 91313-2402 • w aiitionalnotary or9 Pard No. 5907 Barrel Call TollFree1-900.3]56929 0 0 PUBLIC AGENCY FORM OF ACKNOWLEDGEMENT State of California ) County of Orange ) ss. City of San Juan Capistrano ) (Gov't Code 40814 & Civil Code 118 1) On January 20, 2004, before me, Margaret R. Monahan, City Clerk, personally appeared Joe Soto Mayor , personally known tome to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. (SEAL) WITNESS my hand and official seal. R. Monahan, City Clerk OPTIONAL Capacity Claimed by Signers Description of Attached Document Financial Agreement for right of way Mayor acquisition.....(31810 & 31812 San Juan Creek Road, Eichler — APN 666-048-12 & 13 Title Title or Type of Document Signers are Representing City of San Juan Capistrano January 20, 2004 Date of Document 0 • PUBLIC IMPROVEMENT AGREEMENT ASSOCIATED WITH THE DEVELOPMENT OF ASSESSOR PARCEL NUMBER: 666-048-12 & 13 AT 31810 AND 31812 SAN JUAN CREEK ROAD EXHIBIT "A" WORKS OF IMPROVEMENT Type of Improvements: Street and Appurtenant Improvements Storm Drain Channel Improvements and Trail / Maintenance Road Estimated Construction Cost Or Bond Amount $25,800 1/20/2004 G 2b AGENDA ITEM TO: Dave Adams, City Manager FROM: William M. Huber, Director of Engineering and Building SUBJECT: Consideration of a Financial Agreement for the Construction of Street Frontage Improvements at 31810 and 31812 San Juan Creek Road, (Glenn & Rick Eichler) RECOMMENDATION By motion: Approve the Financial Agreement with Glenn and Rick Eichler and their respective spouses for constructing street frontage improvements; and, Authorize the mayor to execute the agreement; and, Direct the City Clerk to forward the Agreement to the Orange County Recorder for Recordation. SITUATION Summary and Recommendation Glenn and Rick Eichler and their respective spouses are constructing two homes on adjoining properties on the south side of San Juan Creek Road, east of La Novia (See Attachment 1, Location Map). As the construction did not require a subdivision of the land, the requirement to improve San Juan Creek Road, along the property frontages, was not applicable. However, in order to complete the frontage street improvements in conjunction with the development of the two homes, the Eichlers have negotiated with City staff and have offered to enter into the subject Financial Agreement (See Attachment 2). Staff recommends City Council approval of the Agreement. Background The subject property developers, Glenn and Rick Eichler and their respective spouses (Developer) are in the process of constructing two single-family homes located at 31810 and 31812 San Juan Creek Road. The construction of these two homes was not subject to any City discretionary review and did not constitute a subdivision of land, as the two separate parcels previously existed and were 0 Agenda Item January 20, 2004 Page 2 modified via a Lot line adjustment. Therefore, such development was only required to obtain building permits and administrative planning and engineering approvals. Further, the City ordinances do not require construction of frontage improvements unless the development is part of a land subdivision process or as conditions of a discretionary action by the City. Thus, the developer is not required to construct frontage improvements along San Juan Creek Road. The developer is interested in improving the San Juan Creek Road frontage and is willing to dedicate the necessary right -of- way and fund a portion of the construction of the improvements if the City would participate financially. The City has for some time wanted to clean up and improve this section of San Juan Creek Road which currently does not have a sidewalk and therefore causes pedestrians in the area to walk in the dirt or on the edge of the pavement. As this is a primary route to the elementary school, Staff is supportive of taking advantage of the mutual benefits to improve the street. In addition to the San Juan Creek Road frontage improvements, the Developer also requests the City consider vacating a portion of an existing trail/maintenance road easement. The Developer proposes to modify the channel within the drainage easements (see cross-section on Attachment 3) which would shift the trail/maintenance road easement to the west and would allow for a 15 -foot -wide side yard for the westerly residence. While the relinquishment of the easement is not an issue for construction of the San Juan Creek Road frontage improvements, the value of the easement to the City is part of the funding agreement. Staff began working with the Developer on a financial arrangement (Attachment 2, Agreement) to satisfactorily construct and pay for the improvements. A review of the history and issues, relative to this agreement, turned up as follows: The original property owner, Glenfed (now Citibank), was to have the street frontage dedicated to the City in 1988. However, since GlenFed sold the property before the transfer was recorded, the dedication was invalidated and apparently not pursued any further. 2. The City owed Citibank $385,000 in Fiscal Year 2002-03 for the final reimbursement for the La Novia Extension. 3. The City negotiated with Citibank to pay the City the acquisition costs of the Developer's right-of-way (appraised at $73,750 at today's cost) by deducting it from the remaining La Novia Extension costs mentioned above. Therefore, the $73,750 is available in the Capital Improvement funds. 4. The City met with the Developer and concurred that the Citibank funds could be used to pay forthe right-of-way if Developer would construct the frontage improvements. Agenda Item January 20, 2004 Page 3 5. The estimated value of the portion of the City's drainage/equestrian easement to be considered for relinquishment to the Developer is valued at $34,000, based on the same unit cost for the San Juan Creek Road easement. 6. The Developer has also requested some engineering inspection and plan check fee credits in -order -to offset the costs. Given the above history and issues, the City negotiated with the Developer to arrive at a fair and equitable solution. Staffs position was that the City and Developer costs should be about the same, given all the trade-offs of improvement costs, fee credits, and right-of-way. The following table was used to create what Staff believes to be a balance of City and Developer costs: City Costs/Fee Waivers Eichler Costs Cost Income/ Cost Income/ Credits Credits Plan Check (Est) $4,500 $0 Plan Check (Est) $4,500 $4,500 Inspection Fees (Est) $4,500 $0 Inspection Fees (Est) $4,500 $4,500 CUP Fees $0 $14,774 CUP Fees $14,774 $0 Ord 364/211 (Paid) $0 $4,741 Ord 364/211 (Paid) $4,741 $0 Right -of -Way Right -of -Way Dedication Street Dedication Street Frontage $0 $55,869 Frontage $55,869 $0 Glenfed Cash Glenfed Cash Contribution $73,750 $0 Contribution $0 $73,750 Drn/Eq Esmt Vac(Est) $34,000 $0 Dm/Eq Esmt(est) $0 $34,000 Box Culvert Box Culvert Funding $0 $46,600 Construction $46,600 $0 Street Improvements $0 $25,800 Street Improvements $25,800 $0 City Contribution $35,300 City Contribution $35,300 Totals $152,050 $147,784 $156,784 $152,050 Net Costs = City $4,266 Eichler $4,734 Delta Ci -Eichler $468 Agenda Item January 20, 2004 While the table is somewhat complicated, it was necessary in -order -to be able to apply the various credits and costs. To achieve the desired goal of balancing City and Developer costs, it is necessary the City contribute $35,300 in addition to paying the $73,750 from the Glenfed Right -of -Way funds. The funding can come from the Capistrano Circulation Fee Program (CCFP) as developer reimbursement funds were set aside in the City Council's consideration of the Capital Improvement Program for this purpose. The modification to the trail and drainage easement will be reviewed by the Park, Recreation & Equestrian Commission at a later date. Their recommendation will be forwarded to the Council upon initiation of the quitclaim of the excess easement. Should the easement not be reduced in width, such action will cause this Agreement to be re -negotiated. Staff believes the deal is equitable and therefore supports entering into the attached Agreement with the developer for funding the various improvements. The Agreement includes a comprehensive indemnification section that holds the City harmless for all construction related activities within the public right-of-way and easements and also requires the developers to post the appropriate sureties prior to construction of improvements. COMMISSION/BOARD REVIEW, RECOMMENDATIONS N/A FINANCIAL CONSIDERATIONS The cost to both parties is indicated in the above background section of the staff report. Staff will adjust the Mid -Year CIP accordingly, based on Council recommendation. All costs to modify the channel to accommodate the easement modification will be borne by the Developer. NOTIFICATION Glenn and Rick Eichler* ALTERNATE ACTIONS a. Approve the Financial Agreement with Glenn and Rick Eichler and their respective spouses for constructing street frontage improvements; and, b. Authorize the mayor to execute the agreement; and, 0 0 Agenda Item January 20, 2004 Page 5 C. Direct the City Clerk to forward the Agreement to the Orange County Recorder for Recording. 2. Do not approve the Financial Agreement 3. Refer to Staff for additional information. RECOMMENDATION By motion: 1. Approve the Financial Agreement with Glenn and Rick Eichler and their respective spouses for constructing street frontage improvements; and, 2. Authorize the mayor to execute the agreement; and, 3. Direct the City Clerk to forward the Agreement to the Orange County Recorder for Recordation. Respectfully submitted William M. Huber, Director of Engineering and Building WMH/SS Attachments: 1) Location Map 2) Financial Agreement 3) Site Plan air, neer, Project Manager CAMy Documents\Agenda Review Draft InformationWanuary\1-20 Eichler Financial SJC Road Improv3.wpd San Juan Creek Homes (Eichler) sy � J i O- p0 b1NbS 0Nl6y y� �o 2 g ATTACHMENT 1 0 FINANCIAL AGREEMENT FOR RIGHT-OF-WAY ACQUISITION IN EXCHANGE FOR CONSTRUCTION OF PUBLIC IMPROVEMENTS AT 31810 AND 31812 SAN JUAN CREEK ROAD, GLENN EICHLER, (ASSESSOR PARCEL NUMBER: 666-048-12 &131 THIS FINANCIAL AGREEMENT ("Agreement") is made and entered into this 20th day of January, 2004, by and between the City of San Juan Capistrano, a Municipal Corporation, hereinafter referred to as the "City" and Glenn and Kathy Eichler, and Rick and Diann Eichler, whose mailing address is 30448 Rancho Viejo Road, Suite 110, San Juan Capistrano, California 92675, herein referred to as "Developer". WITNESSETH WHEREAS, in connection with development of its land, Developer has applied for and was granted a Lot Line Adjustment to accommodate two single family detached residential homes located on 31810 and 31812 San Juan Creek Road respectively; and, WHEREAS, the City has an interest in facilitating the street widening and appurtenances on San Juan Creek Road along the frontage of the subject properties, specifically referred to as Assessor Parcel Numbers 666-048-12 and 13 respectively; and, WHEREAS, the Developer has an interest in reducing the width of an existing public drainage/equestrian trail easement on Developer's south westerly side of property and has agreed to design and construct, at Developer's cost, certain modifications to an existing storm drain channel located within said easement; and, WHEREAS, the City requires that the design and construction of said modification to the existing storm drain channel within the drainage/equestrian trail easement would continue to provide, at minimum, a 12 foot wide equestrian trail/maintenance access; and, WHEREAS, the Developer has agreed to dedicate to the City the necessary public right-of-way for ultimate street width and utilities purposes and to construct, to the satisfaction of the City Engineer, street improvements and all related appurtenances along said properties' frontages, based upon City payment of $109,050, of which $73,750.00 are for right-of-way acquisition and $35,300 for partial financial participation towards the 1 ruf_Cd:IIT, :11:Ilfa relocation of an existing drainage culvert which would be interfering with the proposed widened street, and also based upon City waving the following fees: Any in-house plan check and inspection fees for the street widening and drainage improvement. (Third party review of Soils Reports, Drainage Improvement Plans and Hydrology Hydraulic Studies shall be subject to fee payment); 2. City processing fees for abandonment of section of drainage easement; 3. City processing fees for acceptance of public right-ofway for San Juan Creek Road. WHEREAS, the $73,750.00, described above, represents the City approved appraisal amount for the subject right-of-way acquisition, paid to the City by Citibank (Formerly Glendale Federal Savings and Loan) in order to meet the conditions of approval set forth in City Council Resolution 86-6-17-4, for the development of Tentative Tract Map 12633 by the Subdivider, Dividend Development Company; and, WHEREAS, City desires to assure that said proposed street widening and channel improvements will be done per City approved plans and in a good workmanlike manner and in accordance with the codes now in force and effect in the City of San Juan Capistrano, California, the terms and conditions of which are incorporated herein by reference. NOW, THEREFORE, in consideration of the premises and promises hereinafter contained, City and Developer agree as follows: SECTION 1. PAYMENT AGREEMENT. Upon receiving the following items from the Developer, the City shall then process, for payment to the Developer, the amount of $73,750.00 for the right-of-way dedication along the street frontages of Assessor Parcel Numbers 666-048-12 and 666-048-13. The proper right-of-way dedication documentation 2. City approved Street & Storm Drain Improvement Plans, as specified in Section 2 below 3. Sureties for all the works of improvement, as specified in Section 3 below. 9 SECTION 2. DEVELOPER'S OBLIGATIONS. 0 Developer shall dedicate to the City, for ultimate street width (to back of proposed sidewalk along San Juan Creek Road) and utility purposes, the necessary public right-of-way along Developer properties' frontages to accommodate, to the satisfaction of the City Engineer, a secondary Arterial Highway. Developer shall, at his own cost and expense, provide all required tests, design work, equipment, materials and labor in order to complete all of the works of improvement (the "Works of Improvement"), set forth in Exhibit "A", to the satisfaction of the City Engineer. Such work of improvement shall include but not be limited to the construction of street widening improvements, sidewalk, curb and gutter, relocation of an inlet culvert structure and all related appurtenances. The Encroachment Permit and Street Improvement Plans, which furtherdefines the improvements in Exhibit "A", are on file in the office of the City Engineer, and all documents referenced in Exhibit "A" are incorporated herein by reference. SECTION 3. DEVELOPER'S SECURITY. Developer shall, at all times beginning with the execution of this agreement, guarantee Developer's performance of this agreement by providing City with the following security instruments (the "Security Instruments"), on forms approved by City for the purposes and in the amounts as follows: (1) A Faithful Performance Bond to ensure faithful performance of this agreement in regard to said improvements in the amount of 100% of the estimated cost of construction of the improvements; and (ii) A Labor and Materials Bond to secure payment to any contractor, subcontractor, persons renting equipment or furnishing labor or materials for the improvements required to be constructed or installed pursuant to this agreement in the additional amount of 100% of the estimated cost of construction of the improvements; In order to guarantee and warranty the Works of Improvement and in addition to the security instruments referenced in Paragraph 3 above, Developer shall provide to City the following Security Instruments: (1) Prior to the City's final acceptance of the Works of Improvement, Developer shall provide to City a Warranty Bond for Works of Improvement warranting the accepted Works of Improvement for a period of one (1) year following said acceptance against any defective work or labor done or defective material furnished. The amount of such Warranty Bond for Works of Improvement shall be equal to twenty-five percent (25%) of the estimated construction cost set forth in Exhibit "A", or a suitable amount determined by the City Engineer. SECTION 4. INDEMNITY AND HOLD HARMLESS. Developer shall indemnify, defend and hold harmless the City of San Juan Capistrano and their respective officers, officials, employees and agents from and against any and all liability, loss, damage, expense, costs (including without limitation, attorneys' fees and costs, and fees of litigation) of every nature arising out of or in connection with Developer's use of this Agreement and Developer's performance of work hereunder or its failure to comply with any of its obligations contained in this Agreement. SECTION 5. TERM. This Agreement shall continue in full force and effect until all work is complete and accepted by the City Engineer. Upon completion and acceptance of work, this Agreement shall terminate and all obligations of the City and the Developer will be considered met provided the City or the Developer is not in default hereunder or under the terms of the Note. SECTION 6. ATTORNEY'S FEES. In the event of any litigation between the parties arising out of or related to this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and costs, in addition to whatever other relief such party may be granted. SECTION 7. FORCE MAJEURE. None of the parties hereto shall be deemed to be in default if performance of the obligations required by this Agreement is delayed or becomes impossible because of any act of God, earthquake, fire, strike, sickness, accident, civil commotion, epidemic, act of government, its agencies or officers, or any legitimate cause beyond the control of the parties. SECTION 8. NOTICES. All notices required to be delivered under this Agreement or by law shall be delivered by one of the following means: (i) by personal delivery, (ii) by a reputable document delivery service that provides a receipt showing date and time of delivery, (iii) by United States mail, prepaid, certified, return receipt requested, or (iv) by facsimile transmission, if a fax number is listed below, and so long as the original of the notice is concurrently delivered by one of the other acceptable methods. Notices shall be addressed 0 0 as follows: If to City: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: City Clerk Telephone Number: (714) 493-1171 Fax Number: (714) 493-1053 If to Developer: Glenn and Rick Eichler 30448 Rancho Viejo Road, Suite 110 San Juan Capistrano, CA 92675 Telephone Number: (949) 248-5459 Fax Number: (949) 248-0889 Notices delivered by personal delivery, reputable document delivery service, or facsimile transmission in accordance with the terms of this Section shall be effective upon receipt. Notices delivered by mail shall be effective at the earlier of (i) actual receipt, or (ii) if not deliverable, the date of first attempted delivery. The parties hereto may from time to time designate such other address or addresses for receipt of notices by giving notice in accordance with the terms of this Section. SECTION 9. NO ASSIGNMENT. Developer shall not assign or transfer this Agreement to any person, firm, or entity without the prior written consent of City, which consent City may give or withhold in its sole and absolute discretion. SECTION 10. ENTIRE AGREEMENT. This Agreement contains the entire agreement and understanding of the parties concerning the subject matter herein. This Agreement constitutes the entire understanding and agreement of the parties, integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the parties with respect to all or any part of the subject matter hereof. IN WITNESS WHEREOF, two (2) identical counterparts of this agreement, each of which shall for all purposes be deemed an original thereof, have been duly executed by the Developer herein named on the day of , 2004, the name and corporate seal of each corporate party being hereto affixed and these presents duly signed by its undersigned representative(s) pursuant to authority of its governing body. DEVELOPER By: �. EI on Eichler, 1 Kathy Pchler, By: Z �'C--- Rick Eichler, By: b6&14 w4 - -� Diann Eichler, (Attach Notary Acknowledgment) Attachment: Exhibit "A" Lei 40 CITY OF SAN JUAN CAPISTRANO M JOE SO'I'0 MAYOR CITY CLERK APPROVED AS TO FORM 11TY ATTORNEY 0 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California ss. County of Q���1- 0 On tS tea_ M &W before me, X99 �r�n "Jane V , Date NameandTitle of Officer (ea,.Jane Doe, NoBWX3ul personally appeared Ca `lcay.. G��n��• Names) of Signers) ❑ Wsonally known to me proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) ire subscribed to the within instrument and acknowledged to me that Wztre/they executed the same in bis/hef/fheir authorized capacity(ies), and that by kris/heir signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. — �C9.v�r2 �9„�c�4u acrl. Place Notary Seal Above Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: ❑ Individual Top or thumb Here ❑ Corporate Officer — Title(s): ❑ Partner —❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee 1:1 Guardian or Conservator ❑ Other: Signer Is Representing: 01993 National Notary Association • 9350 De Solo Ave., P.O. Bax 2402 • Cralexome, CA 91313-2402 • w nalionalnolaryo,g Pox. No. 5907 Reorder'. Call Toll Free 1-60M76 6927 0 0 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of I ss. On lS `X�Q�n.�l �CO3, before me,w�a-x�c�ctA Date Name and Title of Officer (e g., *Jane Doe, Notary Public" personally appeared (SkZNw Name(s) of Signe lop -..11 •' n TogeLsonally known to me 6 proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) 4stare subscribed to the within instrument and acknowledged to me that heWe/they executed the same in his/heTheir authorized capacity(ies), and that by I}is/h�/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WIT ESS my hand and official seal. Z'w 'Ai" Place Notary Seal Above Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Signers) Other Than Named Above: Capacity(ies) Claimed Signer's Name: ❑ Individual ❑ Corporate Officer — Title(s): _ ❑ Partner —❑ Limited ❑ General by Signer ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Number of Pages: RIGHT THUMBPRINT OF SIGNER 01999 National Notary Associatwn • 9350 0e Solo Ave., PO, Sox 2602"Cba15 OM, CA 91313-X02 • www nationalnntarymg Prod, No 5907 reenter Call Toll Free 1 -BW -876 6827 171 PUBLIC IMPROVEMENT AGREEMENT ASSOCIATED WITH THE DEVELOPMENT OF ASSESSOR PARCEL NUMBER: 666-048-12 & 13 AT 31810 AND 31812 SAN JUAN CREEK ROAD Type of Improvements: EXHIBIT "A" WORKS OF IMPROVEMENT Estimated Construction Cost Or Bond Amount Street and Appurtenant Improvements $25,800 Storm Drain Channel Improvements and Trail / Maintenance Road $46,600 i ww w d? O� w c b0 \ ow by \ 4Yys x l \ I v v I v OG VW N Z g LU N ATTACHMENT F �^ o Y 00 IF Em / a Y O 6J ad > m I iia�� l o'z 00 �Y I b0 \ ow by \ 4Yys x l \ I v v I v OG VW N Z g LU N ATTACHMENT F is 32400 PASEO ADELANTO SAN JUAN CAPISTRANO, CA 92675 (949) 493-1171 (949) 493-1053 (FAX) www sanjuancapistrano. org 1//Yyy IRIIIIIIHII • uum"n � 1961 1776 MEMBERS OF THE CITY COUNCIL DIANE L. BATHGATE JOHN S. GELFF MATT HART JOESOTO DAVID M. SWERDLIN INTERIM CITY MANAGER NOTIFICATION OF MEETING OF POTENTIAL INTEREST OF THE SAN JUAN CAPISTRANO CITY COUNCIL PAMELA.GIBSON The City Council of San Juan Capistrano will meet at 7:00 p.m. on January 20, 2004 in the City Council Chamber in City Hall, to consider: "Consideration of a Financial Agreement for the Construction of Street Frontage Improvements at 31810 and 31812 San Juan Creek Road, (Glenn & Rick Eichler)" — Item No. G 2b If you have specific thoughts or concerns regarding this item, you are encouraged to participate in this decision making process. You can communicate with the City Council through correspondence addressed to the Council and/or by attending the meeting and speaking to the Council during the public meeting. Correspondence related to this item must be received at City Hall by 5:00 p.m. on Monday, January 19, 2004 to allow time for the Council to consider its content. If you would like to speak at the meeting, please complete a blue 'Request to Speak" form found inside the entrance to the Council Chamber. This form is turned in at the staff table, just in front of the Council dais. You will be called to speak by the Mayor when the item is considered. You have received this notice at the request of the City staff member Sam Shoucair, Senior Engineer. You may contact that staff member at (949) 443-6355 with any questions. The agenda, including agenda reports, is available to you on our web site: www.sanivancapistrano.oro. If you would like to subscribe to receive a notice when agendas are posted to the web site, please make that request by sending an e-mail to: council-agendasasanivancapistano.org. Meg Monahan, CMC City Clerk cc: Glenn and Rick Eichler*; William M. Huber, Engineering and Building Director; Sam Shoucair, Senior Engineer * Received staff report San Juan Capistrano: Preserving the Past to Enhance the Future